Smt. Shakila Bano vs Shri Rajendra Prasad Gupta

Hon''ble Shri Justice A.K. Shrivastava

By filing this appeal u/s 30 of the Workmen''s Compensation Act, 1923 (in short "W.C. Act") the claimant has knocked the doors of this Court by preferring this appeal for enhancement of the amount of compensation. In brief the case of claimant which is borne out from the claimant''s application filed u/s 10 of W.C. Act is that her husband namely Abdul Shaheed was employed under the employment of first respondent Rajendra Prasad Gupta and was serving as driver on Truck No. MP21-7544 which met with an accident with another vehicle (Tanker) bearing registration No. MH04P-775. in the application it is pleaded that the said Tanker was being driven rashly and negligently by its driver, as a result of which it collided with the truck driven by the husband of appellant as a result of which he breathed his last in the accident. After having served requisite and statutory notice prescribed u/s 10 of the W.C. since no compensation was paid, the appellant filed an application for grant of compensation before the Commissioner u/s 4 of the W.C. Act.

In the application it has been pleaded by the appellant that deceased/workman was earning a sum of Rs. 4000/- per month. His age at the time of accident was 40 years and the accident has arisen during the course of his employment.

The written-statement filed on behalf of employer. In para 4 of the written-statement the accident as well as fit arose during the course of employment has been admitted by the employer. Specifically it has been admitted by employer/respondent No. 1 that salary Rs. 125/- per day was being paid to the deceased workman and not Rs. 4000/- as pleaded by claimant/appellant. In the written-statement filed on behalf of Insurer/respondent No. 2 ignorance in regard to income of deceased workman has been pleaded.

Learned Commissioner framed necessary issues and after recording the evidence of the parties allowed the claim of the appellant and it was directed to pay compensation to the tune of Rs. 2,08,665/- alongwith interest @9% per annum.

In this manner, this appeal has been filed by the claimant for enhancement of the award. The contention of learned counsel for appellant is that learned Commissioner has fixed the income of the deceased (workman) according to minimum wage which is on lower side. It has also been put-forth by him that no evidence in rebuttal has been adduced either by Insurer or by employer. In the claim application it has been specifically stated by claimant that her husband was earning Rs. 4000/- per month and if that would be the position the compensation should have been awarded by fixing the wage Rs. 4000/- per month and therefore the amount of award be enhanced. In support of his contention, learned counsel has placed heavy reliance on a Single Bench decision of this Principal Seat in M.A. No. 1234/2005 (Smt. Rehna Begum vs. Sama Khan & Ors.) decided on 2.2.2012.

On the other hand, learned counsel for Insurer/respondent No. 2 argued in support of the impugned order and submitted that merely on the basis of bald statement without having any support of the document, the income as stated by claimant should not be accepted. Learned counsel placed heavy reliance upon the Single Bench decision of this Court Oriental Insurance Co. Ltd. Vs. Heerabai and Others, , Shankar Vs. The Chief Engineer, KPTCL and Others, (Andhra Pradesh High Court).

Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed in part.

On bare perusal of the written-statement filed on behalf of employer it is gathered that specifically it has been pleaded that deceased workman was earning Rs. 125/- per day although it has been pleaded by him that throughout for whole month he was not assigned the duty. In the written-statement of Insurer ignorance has been pleaded in regard to actual income of deceased/workman. Thus, according to me, there is clear admission of the employer admitting the fact that deceased was earning Rs. 125/- per day. According to me, the admissions in pleadings or judicial admissions, admissible u/s 58 of the Evidence Act made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On this proposition I may profitably place reliance on the decision of Supreme Court Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, . There is a later decision of Supreme Court Seth Ramdayal Jat Vs. Laxmi Prasad, on the same point. In the present case, the employer has categorically admitted in the written-statement that deceased workman was earning Rs. 125/- per day and therefore clear admission of employer is having on higher footing and as per decision of Supreme Court it requires no proof. Thus, I am of the view that instead of fixing the minimum wage in order to calculate the compensation it ought to have been calculated @ Rs. 125/- per day. Learned Commissioner has thus erred in substantial error of law in passing the impugned award on lesser side ignoring the material admission made in the pleadings which makes the foundation of the parties to determine their rights. In this backdrop the decision of this Court in Heerabai (supra) and that of Karnataka High Court and Andhra Pradesh High Court Shankar and Bashaboina Bakkamma (supra) are distinguishable.

In the written-statement of employer/respondent No. 1 it has been pleaded that the workman was not being employed throughout the month for 30 days. Certainly after completing a trip the deceased workman must have been taking rest for few days and therefore by fixing it to be 5 days in a month I am of the view that income of deceased workman should be computed @ Rs. 125/- per day for 25 days in a month. Since the age of deceased admittedly at the time of accident was 40 years, therefore, according to Schedule-IV of W.C. Act the relevant factor would be 184.17. Since in the present case workman has died therefore 50% of total wages is to be fixed and if it is multiplied by factor 184.17, the compensation would come to Rs. 2,87,765/-. The interest @12% per annum should be calculated upon this amount and it should be paid from the date of accident. In this regard in the recent decision The Oriental Insurance Company Ltd. Vs. Siby George and Others, the Supreme Court has directed to pay the interest from the date of accident. Therefore, I am of the view that because W.C. Act is a beneficial legislation therefore the rate of interest @12% per annum should be paid from the date of accident. The substantial questions of law are thus answered in favour of appellant. Resultantly, this appeal succeeds in part. The amount of award passed by learned Commissioner is enhanced to the extent indicated hereinabove. Let balance amount alongwith interest be deposited before the Commissioner within a period of three months as agreed by learned counsel for respondent No. 2. No costs.