SIKANDAR HUSSAIN vs AHMED HAFISUR RAHMAN and ANR.

1.Heard Mr. AR Agarwala, learned counsel for the appellant and also heard Mr. R. Goswami, learned counsel appearing for the respondent No.2.

This is an appeal under section 30(1)(a) of the Employees Compensation Act, 1923 (as amended) against the judgment and order dated 06.03.2014,

passed by the learned Commissioner, Employees Compensation, Guwahati, Assam, in W.C Case No. 65/2009

The brief facts and circumstances which led to the filing of this appeal are as follows; The appellant/claimant, aged about 28 years only, who was

employed as a driver by the respondent No.1, owner of the Mini-bus bearing Registration No. ML-08/A-2082, on a monthly salary claimed to be Rs.

12,000/- while on duty on 13.05.2007 met with an accident near Garobadha at about 1:00 p.m. of the same day. As a result of the accident, the

appellant sustained injuries over his body including facture of his right arm, hip and spine. He was immediately taken to Garobdha Public Hospital

Centre from where he was referred to Tura Civil Hospital, but from there also he was again taken to Goalpara Civil Hospital wherein he was finally

treated from 26.05.2007 to 29.08.2007. After his treatment was over the appellant/claimant filed a claim case before the learned Commissioner,

Workmen’s Compensation, Guwahati, claiming a compensation to the tune of Rs. 8,00,000/- with interest and penalty. The respondent No.1 i.e.

owner of the vehicle did not enter appearance but the respondent No. 2/Insurance Company with whom the vehicle was insured entered appearance

and contested the claim by filing a written statement. After evidence were taken and the parties were heard, the learned Commissioner passed the

award as follows;

“AWARD/ORDER

In the light of the above discussions and decision, the claimant Md. Sikandar Hussain, driver of the vehicle No. ML-08/A-2082 (Mini bus) is awarded

a compensation of Rs. 12,000/- (Rupees twelve thousand) only on account of personal injuries sustained by him in the vehicular accident arising out of

and in course of his employment under O.P. No. 1. The O.P No. 2 i.e. the New Assurance Co. Ltd. Is hereby directed to deposit the said amount

with the undersigned within 30(thrity) days from the date of received of this order for disbursement to the claimant. In default, the Insurance Co. will

be liable to pay an interest @ 12% per annum in addition to the aforesaid awarded compensation amount. Issued under my hand and seal of this Court

on this 6th day of March, 2014. Let a copy of the order be sent to the parties concerned for compliance.

(J.N. Pegu)

Commissioner for Workmen’s

Compensation Kamrup, Ulubari, Guwahati-7.â€​

Not satisfied with the award, the appellant/claimant has come to this Court filing the present appeal.

Mr. A.R Agarwala, learned counsel for the appellant submitted that the appeal is limited to non-consideration of the medical expense incurred by

the appellant/claimant and against the conclusion drawn by the Tribunal in respect of the year of disability and non inclusion of daily allowance of the

appellant/claimant as in the reckoning of his income. However, after having submitted to some length, Mr. Agarwala abundant his other claims but

confined only to the claim that the daily allowance of the appellant/claimant should be included in his income. Mr. Agarawal in support of his

submission referred to the judgment of this High Court passed in the case of Oriental Insurance Company Ltd., -Vrs- Usha Devi Bhuyan & Anr.,

reported in (2014) 3 NEJ 337(Gau). The relevant portion referred by the learned counsel is at paras-4 to 9. The same is reproduced here below;-

“4. Mr. S.K. Goswami, learned counsel appearing for the petitioner submitted that the finding as regards the monthly wage of the deceased

workmen cannot be sustained as the monthly wage has been assessed by including the daily allowance. The Commissioner, Workmen's Compensation

has observed that the wife of the deceased workmen has categorically stated that her husband was employed as a driver in the vehicle under

registration No.AS-02/A-2725 a Tata Sumo, owned by the respondent No.2 at a monthly salary of Rs.2,000 in addition to the daily allowance of @

Rs.50 per day. She further stated that her husband was sent to Jorhat by his employer to drop some persons and her husband became untraced from

then and later on his dead body was found near the bank of Bhogdoi river.

Mr. S.K. Goswami's contention is that the inclusion of the daily allowances is completely unacceptable in view of the decision of this court in

Oriental Insurance Co. Ltd. v. Lakhimai Das and Anr., 2006 (3) GLT 870 where this court has held as under :

It is clear from herein above that a sum of amount paid to a workman to cover any special expenses entailed on him by the nature of his

employment is not included in his ""wages"" for the purpose of the Act. From the nature of the employment of the deceased, we have no hesitation to

hold that the daily allowances by the claimant in her deposition would not form a part of the wages as defined under the Act. On a moderate estimate,

we may take that a daily allowance of Rs.20 was paid to the deceased. Resultants an amount of Rs.600 can be safely deducted from the amount

quoted by the claimant to be the income of the'deceased per month. According to us, therefore, the wages for the purpose of computing the

compensation for the death of the deceased has to be taken as Rs.3,000 per month. We are, therefore, of the view that the learned commissioners had

erred in law and on facts in proceeding on the basis that the monthly wages of the deceased at the relevant time was Rs.3,500.

This court has given an anxious consideration to the submission of Mr. Goswami, learned counsel and has also critically examined the decision of

Lakhimai Das (supra). In Lakhimai Das (supra) this High Court did not lay down any principle but has interpreted the provisions of law in the

attendant circumstances of that particular case and held that a sum of amount paid to a workman to cover any special expenses entailed on him by the

nature of his would not include in his ""wages"" for the purpose of determining the compensation. The said interpretation does not restrict in any manner

the definition of the ""wages"" as provided in section 2(m) of the workmen's compensation act, 1923which stipulates as under : '"" Wages"" includes any

privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a

contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses

entailed on him by the nature of his employment.

In that case the tribunal found that the said daily allowance was a sum paid to the workman to cover the special expenses but it did not project that

the daily allowance of all natures would be excluded from the wages. The wages includes any privilege or benefit which is capable of being estimated

in money. In this regard a decision of the Apex Court in Mohd. Ameeruddin and Another v. United India Insurance Co. Ltd. and Another, (2011) 1

SCC 303 is required to be referred to. The Apex Court in Mohd. Ameeruddin (supra) held that :

We are unable to appreciate the view taken by the High Court on both counts. First, there was no evidence that the daily allowance of Rs.50 was

not paid to the deceased every day or even that he was not on work on every day of the month. On the contrary, there is evidence on record that

apart from the monthly salary of Rs.2,500 he was getting Rs.50 as daily allowance. We, therefore, hold that the tribunal was right in assessing the

monthly income of the deceased at Rs. 4,000.

In the case in hand also there is no evidence that the daily allowance as was being given to the workman was not given on everyday of the month

or he was not working on everyday of the month. Therefore, in conjoint reading of section 2(m) as excerpted with Mohd. Ameeruddin (supra), it

would be crystal clear that 'wages' would include the daily allowance unless it is demonstrated that the said allowance is a part of a sum paid to a

workman to cover any special expenses entailed on him by the nature of his employment.

The appellant in the appeal did not make any endeavour to prove that the daily allowances as paid to the workmen was a sum paid to the workmen

to cover any special expenses entailed on him by the nature of his employment. The daily allowances therefore would include within the benefit as

defined in section 2(m) of the workmen's compensation act, 1923 which is capable of being estimated in money. It is held that the daily wages of the

nature as the workman was being paid would include in the wages for the purpose of calculating the compensation for death of the workmanâ€​.

Mr. R. Goswami, learned counsel appearing for the respondent submitted that there is a judgment of the Division Bench of this High Court which

stated that daily allowance should not be included in the wages of a workmen’s. Mr. Goswami referred to the judgment of the Division Bench in

the case of Oriental Insurance Company Ltd. â€"Vrs- Lakhimai Das & Ars., passed in MFA No. 3/2003, reported in 2006 (3) GLT 870. The relevant

portion of the judgment at paras-11 & 12. The content of the two paras are given here below;

“11. We have examined the pleadings of the parties and the evidence on record the state of pleadings is not in dispute we however, from the

evidence of the claimant find that she had deposed that her son at the time of his death has an income of Rs. 3,600/- per month including daily

allowances. It is thus abundantly clear from the testimony of the claimant that the amount of Rs. 3,600/- included daily allowances. The question

therefore is whether in ascertaining the wages of the deceased, the daily allowances can be taken note of. The definition of ‘wages’ as

provided in section 2(m) of the Act is quoted herein below ;2(m) ‘wagesâ€, includes any privilege or benefit which is capable of being estimated in

money, other than a travelling allowance of the value of any travelling concession or a contribution paid by the employer of a workman towards any

pension or provident fund or a sum paid to a workman to cover any special expenses entailed on his by the nature of his employment.

It is clear from herein above that a sum of amount paid to a workman to cover any special expenses entailed on him by the nature of his

employment is not included in his ‘wages’ for the purpose of the Act. From the nature of the employment of the deceased, we have no

hesitation to hold that the daily allowances referred to by the claimant in her deposition would not form a part of the wages as defined under the Act.

On a moderate estimate, we may take that a daily allowance of Rs. 20/- was paid to the deceased. Resultants an amount of Rs, 600/- can be safely

deducted from the amount quoted by the claimant to be the income of the deceased per month. According to us, therefore, the wages for the purpose

of computing the compensation for the death of the deceased has to be taken as Rs. 3000/- per month. We are, therefore, of the view that the learned

commissioners had erred in law and on facts in proceeding on the basis the monthly wages of the deceased at the relevant time was Rs. 3,500/-.â€​

Mr. Goswami also submitted that as per the explanation No. 2 of section 4 of the Workmen’s Compensation Act, 1923 in any case the wages

of the workmen for the purpose of compensation under the Act cannot exceed Rs. 4,000/-. Since the accident took place in 2007 when the said law

was applicable the claim of the appellant/claimant that his wage should have been taken as Rs. 12,000/- inclusive of his daily allowance cannot be

allowed.

As for the interest, both the learned counsels submitted that it should be with effect from the day 1(one) month’s time counting from the date of

judgment expires.

I have considered the rival submissions of both the learned counsels and also noted the point on which they agreed with each other. On careful

perusal of the judgment passed by the learned Single Judge in the case of Oriental Insurance Company Ltd., -Vrs- Usha Devi Bhuyan & Anr., cited

by the learned counsel for the appellant including the judgment cited by the learned counsel of the respondents passed by a Division Bench of this

High Court in the case of Oriental Insurance Company Ltd. â€"Vrs- Lakhimai Das & Ars., I am of the considered view that the words of Section

2(m) should be interpreted in such a way that it includes daily allowance. I agree with the reasons given by the learned Single Judge, therefore,

without elaborating any further I would conclude that the learned Commissioner has committed an error in not having included the daily allowance of

the appellant/claimant while computing his monthly income. However, I must quickly add here that as per the provisions of section 4 Explanation II,

the wages of the appellant/claimant cannot or should not in any way cross the ceiling limit of Rs. 4,000/- given therein. It was claimed by the

appellant/claimant that his monthly wages was Rs. 3,000/- and his daily allowance was Rs. 300/-. In his evidence, the appellant/claimant stated that he

was given Rs. 3,000/- as his monthly salary and Rs. 300/- per day as daily allowance. In support of his claim on his income he submitted and exhibited

income certificate issued by Circle Officer of Mankachar Revenue Circle who certified that his annual income was Rs. 75,000/-.But the income

certificate is only concerning annual income from agricultural sources and not related with his monthly income as Driver. However, the

appellant/claimant was not cross examined by the respondents and no evidence was also produced by them to prove otherwise. Therefore, the income

of the appellant/claimant has to be accepted as claimed by him. As such, the monthly income of the appellant/claimant at that time including his daily

allowance has to be Rs. 300x30+3000=Rs. 12,000/- However, as stated above, in view of what is given at Explanation II of section 4 the income of

the appellant/claimant is fix at Rs. 4,000/- for the purpose of calculating his entitlement under the Workmen’s Compensation Act.

Now coming to the nature of injuries and disablement suffered by the appellant/claimant, the appellant/claimant has stated in his evidence that due

to the accident he could not work for 2 years. From the nature of injuries suffered by the appellant/claimant and the agony he had gone through, I am

of the opinion that he should be given a chance of being examined by a competent Doctor as may be appropriately chosen by the Commissioner to

determine the extend of disability suffered by him so as to come to the right conclusion regarding the loss of income he had suffered or will continue to

suffer. For that the case has to be send back to the Commissioner, Workmen’s Compensation, Kamrup. Therefore, this case is remanded back to

the Commissioner, Workmen’s Compensation, Kamrup, Ulubari for causing examination of the appellant/claimant by a competent Doctor for the

purpose stated above. After the appellant has been examined the Commissioner shall give the parties to examine or cross examined the Doctor.

Thereafter, the Commissioner, taking into account what has been stated above shall determined the amount of compensation payable to the

appellant/claimant and pass appropriate judgment and award within a period of 3 months from the date of receipt of a copy of this order. With this, the

appeal is disposed. Send the LCR along with a copy of this order immediately. The parties shall appear before the Commissioner within fifteen days

from today.