The mandatory nature of Section 4(1B) of the Employees Compensation Act, 1923 requires that if claimants cannot prove higher wages, the wages specified by the Central Government must be used for compensation calculations.

JUDGMENT

C.M.JOSHI, J.

We have heard the learned counsel appearing for the appellant on admission.

2. The appellants are the petitioners before the learned Commissioner under Employees Compensation Act, 1923 cum Additional Senior Civil Judge, Basavana Bagewadi.

3. The appellants approached the learned Commissioner under Sec. 22 of the Employees Compensation Act, 1923 (hereinafter referred to as 'EC Act, 1923' for short) seeking compensation on account of death of Basavaraja. They contended that deceasedBasavaraja was working under respondent No.1 as a Coolie earning Rs.15, 000.00 per month and there exist a relationship of employer and employee. It was alleged that on 24/11/2017, the employee Basavaraja while working in NTPC premises at Kudagi near Railway Rack on coal bund, while sloping the coal, he slipped from the top and the coal fell on him causing severe injuries to him and later, he succumbed to the injuries.

4. The petition was resisted by the respondent No.2 contending that there were non-compliance of several requirements of law and the alleged incident was never reported to it by respondent No.1 and also that there was no such relationship of employer and employee between respondent No.1 and deceased, with various other contentions.

5. The learned Commissioner recorded the evidence and after hearing the arguments, came to the conclusion that the petitioners are entitled for the compensation. In view of the notification under Sec. 4(1B) of EC Act, 1923 issued by the Central Government, the monthly wages was considered at Rs.8, 000.00 and awarded a compensation of Rs.8, 36, 920.00 by adopting the procedure laid down under Sec. 4(1)(a) of EC Act, 1923.

6. The petitioners have come up in this appeal contending that the wages of the deceased should have been considered at Rs.15, 000.00 per month and the learned Commissioner erred in adopting the wages at Rs.8, 000.00 per month. Reliance is placed on the decision of the Hon'ble Apex Court in the case of JAYA BISWAL AND OTHERS VS. BRANCH MANAGER IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED AND ANOTHER(Civil Appeal No.869/2016 dtd. 4/2/2016).

7. The learned Commissioner has noted that either the claimants or the respondant No. 1- employer have not produced any acceptable material to prove the wages. There is no scope for considering higher monthly wages, by applying the principles applicable for the claim under Motor Vehicles Act 1988. The option is to calculate the wages either under Sec. 5 of the EC Act or as per the notification of the Central Government. The provisions of Sec. 4(1B) of the Employees Compensation Act, 1923 reads as below:

"4(1B) The Central Government may, by notification in the Official Gazette, specify, for the purposes of sub-sec. (1), such monthly wages in relation to employee as it may consider necessary."

8. In view of the above provisions, the wages shall be considered as per the notification issued by the Central Government under Sec. 4(1B) of EC Act, 1923, if the claimants are unable to prove the wages they claimed. The notification No.S.O.1258(E), dtd. 31/5/2010 fixes the monthly wages at Rs.8, 000.00.

9. The decision in the case of JAYA BISWAL (referred supra) was concerning an appeal, whereby, the learned Commissioner had awarded the compensation holding the monthly wages to be Rs.10, 000.00. In appeal, the High Court had reduced the amount of compensation awarded by the learned Commissioner and against it, the claimants had gone in appeal. The Hon'ble Apex Court found that such reduction is not justifiable and therefore, it restored the order passed by the learned Commissioner. Thus, it do not laid down the ratio that any wages other than the one notified under Sec. 4(1B) of EC Act, 1923 is permissible for consideration. Having regard to the fact that the provisions of Sec. 4(1B) and Sec. 5 of EC Act, 1923 are mandatory in nature, it is not possible to accede to the claim of the appellants herein.

10. Therefore, we find no merit in the app