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2012 Supreme(Gau) 1151
IN THE HIGH COURT OF GAUHATI
S. Talapatka, J.
New India Assurance Co. Ltd. – Appellants
Vs.
Rabin Bharali and Another – Respondent
MFA No. 65 of 2004
Decided On: 28.09.2012
For Appellant/Petitioner/Plaintiff: S. Dutta
For Respondents/Defendant: D.K. Saikia
Headnote:
Workmens Compensation Act, 1923 - Sections 30, 2 and 4 – Claimed Monthly Salary - Compensation for Bodily Injury - Learned Counsel appearing for appellant submitted with sufficient vehemence that Commissioner Workmens Compensation has returned following findings in complete defiance to settled position of law - Although monthly salary only as claimed by claimant looks reasonable without doubt daily allowance as claimed by petitioner in his capacity as a Handiman appears to be much exaggerated - In absence of any evidence to establish monthly salary of claimant we decline to accept only as monthly salary - Compared with minimum wages fixed by Govt for workers employed in different categories of employment monthly salary of claimant shall not be more then including all allowances - On basis of said monthly wage compensation was assessed by Commissioner Workmens Compensation - It appears further that Commissioner Workmens Compensation has assessed physical disability and percentage of loss of earning capacity on basis of opinion made by a qualified medical practitioner PW 2 who had categorically stated that he assessed physical disability and loss of earning capacity – Held, Appellant in this appeal did not make any endeavour to prove that daily allowances as paid to workmen was a sum paid to workmen to cover any special expenses entailed on him by nature of his employment Thus daily allowances would include within benefit as defined which is capable of being estimated in money - It is therefore held that daily wages of nature as workman was being paid would include in wages for purpose of calculating compensation for bodily injury as received by workman - In view of this there is no substance in submissions of learned Counsel appearing for appellant - On a scrutiny of deposition of PW 2 it appears that for appellant there had been no cross-examination to unearth fact that whether assessment of loss of earning was made as per provisions read with Explanation II as placed there under or not - Even there is no suggestion to PW 2 whether he has taken care of injuries as appearing in Schedule-I as appended - Situated thus this Court is reluctant to accept contention of learned Counsel appearing for appellant regarding assessment of loss of physical ability and earning capacity - Appeal is dismissed.
S. Talapatka, J.
1. This is an appeal under section 30(1) of the Workmen's Compensation Act by the New India Assurance Co. Ltd. against the judgment and award dated 22.2.2004 as passed by the Commissioner, Workmen's Compensation, Kamrup, Guwahati in W.C. Case No. 158 of 2003.
The following substantial questions of law were formulated at the time of this appeal by the order dated 13.6.2008:
(1) Whether the daily allowances could be included in assessing the monthly wages of the Workman or not?
(2) Whether the loss of earning capacity of the injured can be assessed relying on the statement of the doctors on presumption or not?
Mr. S. Dutta, learned Counsel appearing for the appellant submitted with sufficient vehemence that the Commissioner, Workmen's Compensation has returned the following findings in complete defiance to the settled position of law:
Although the monthly salary of Rs.1000/- (Rupees one thousand) only as claimed by the claimant looks reasonable without doubt, the daily allowance of Rs.100/- per day as claimed by the petitioner in his capacity as a Handiman appears to be much exaggerated. In absence of any evidence to establish the monthly salary of the claimant we decline to accept Rs.4,000/- (Rupees four thousand) only as monthly salary. Compared with the minimum wages fixed by Govt. for workers employed in different categories of employment, the monthly salary of the claimant shall not be more then Rs.3,000/- (Rupees three thousand) p.m. including all allowances.
On the basis of the said monthly wage the compensation was assessed by the Commissioner, Workmen's Compensation. It appears further that the Commissioner Workmen's Compensation has assessed the physical disability and the percentage of the loss of earning capacity on the basis of the opinion made by a qualified medical practitioner namely Dr. S.C. Sarma (PW 2) who had categorically stated that he assessed the physical disability at 40% and the loss of earning capacity at 30%. According to Mr. S. Dutta, learned Counsel appearing for the appellant such-assessment is completely erroneous. Mr. S. Dutta, learned Counsel relied a decision of this Court in Oriental Insurance Co. Ltd. v. Lakhimai Das and another, 2006 (3) GLT 870 where this Court held as under:
12. 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.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 that the monthly wages of the deceased at the relevant time was Rs.3,500/-.
On the basis of the said decision, Mr. Dutta, learned Counsel appearing for the appellant categorically submitted that the daily allowances cannot be included in the wages of the workman.
2. On the other hand, Mr. D.K. Saikia, learned Counsel appearing for the claimant-respondent submitted that the assessment of the wages of the workman as well as the compensation as determined by the Commissioner, Workmen's Compensation cannot be faulted with.
3. This Court has given an anxious consideration to the submission of Mr. Dutta, 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
