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2018 Supreme(Gau) 24
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
KALYAN RAI SURANA, J.
Oriental Insurance Co. Ltd. – Petitioner
Versus
Dewcharan Prasad And Anr. – Respondents
MFA/22 of 2010
Decided On : 10-01-2018
For the Petitioner: Mr. S. Dutta, Ms. R. Kaur : Mr. D. Baruah, Ms. M. Choudhury
For the Respondent: Mr. M.H. Rajbarbhuiyan, Ms. R. Chetri
The assessment of loss of earning capacity must be based on accurate evidence and in accordance with the provisions of the Workmen’s Compensation Act, 1923.
Headnote:
Workmen’s Compensation Act - Assessment of compensation, inclusion of daily allowances in wages - Acceptance of loss of earning capacity - [Workmen’s Compensation Act, 1923] - [Section 30] - [Summary: The court discussed the inclusion of daily allowances in wages and the assessment of loss of earning capacity. It held that daily allowance forms part of wages and upheld the acceptance of daily allowance as part of wages. However, it found the assessment of loss of earning capacity at 40% to be erroneous and remanded the matter for fresh decision.]
Fact of the Case:
The respondent No. 1 claimed compensation for injuries sustained in a truck accident. The court found that the injuries resulted in 20% physical disability and 40% loss of earning capacity. The appellant challenged the assessment of loss of earning capacity.
Finding of the Court:
The court found the inclusion of daily allowance in wages to be valid but held the assessment of loss of earning capacity at 40% to be erroneous. It remanded the matter for fresh decision before the Commissioner.
Issues: Assessment of compensation, inclusion of daily allowances in wages, acceptance of loss of earning capacity
Ratio Decidendi: The court upheld the inclusion of daily allowance in wages but found the assessment of loss of earning capacity at 40% to be erroneous, leading to a remand for fresh decision.
Final Decision: The appeal was allowed, and the matter was remanded for fresh decision before the Commissioner.
Heard Mr. S. Dutta, the learned counsel for the appellant as well as Mr. M.H. Rajbarbhuiyan, the learned counsel appearing for the respondent No. 1/ claimant.
2. This appeal under Section 30 of the Workmen’s Compensation Act, 1923 is preferred against the judgment and award dated 20.11.2007, passed by the learned Commissioner, Workmen’s Compensation, Nagaon in N.W.C. Case No. 17/2003. The appeal has been admitted for hearing on the following substantial question of law by order dated 26.03.2010.
(i) Whether while assessing compensation, the learned Commissioner could have included, within the wages, daily allowances, paid to the work man?
(ii) Whether acceptance of 40% loss of earning capacity by the learned Commissioner, while assessing and awarding the compensation is tenable in law?
(iii) Any other question or questions, which may be allowed to be raised by the Court at the time of hearing of this appeal?
3. The case in brief is that the respondent No. 1 was employed as a handyman of truck bearing registration No. MNP-2798, which was owned by the respondent No. 2. On 18.02.2001 while coming from Doboka towards Nagaon, the said vehicle met with an accident at Arjuntal on N.H. 36 due to mechanical defect. The Nagaon P.S. registered a case vide G.D.E. No. 344 dated 18.02.2001. The respondent No. 1 claimed that he was 32 years old and used to earn Rs.5,000/-per month including daily allowance. The said vehicle was duly insured with the appellant. By filing the claim petition, the respondent No. 1 claimed compensation of Rs.3,00,000/-with interest @ 18% per annum. The appellant as well as the owner of the vehicle i.e. respondent No. 2 submitted their written statement. In his written statement, the respondent No. 2 disclosed that the vehicle was duly insured with the appellant. He admitted the employment and income of the respondent No. 1.
4. In support of his claim, the respondent No. 1 examined himself as PW.1 and the Doctor who was treating him was examined as PW.2 and the respondent No. 1 exhibited the following documents, viz. prescription of the Doctor (Exbt.1, 2 and 3), Injury Report dated 02.08.2005 (Exbt.4). The appellant did not examine any witness.
5. The learned Commissioner, by relying on the evidence of Doctor (PW.2), observed that following the accident, the following injuries were found on the person of the respondent No. 1/claimant, (i) swelling, tenderness and restriction of movement of left knee joint and observed that X-ray showed fracture of left patella, (ii) multiple infected abrasions over the both extremities, and held that on cross-examination of both the PWs., nothing adverse had come out and the learned Commissioner arrived at a finding that the respondent No. 1/claimant had succeeded in proving the injury and the resultant disablement. Accepting the evidence of the Doctor (PW.2), it was held that the injuries have made the respondent No.1 physically disabled by 20% and he has lost his earning capacity by 40%. Accordingly, holding the appellant liable to pay compensation, his salary was taken to be Rs.3500/-per month and compensation was calculated as follows:
60% of Rs.35,00/-X 203.85 X 40% = Rs.1,71,7234/-The said amount was ordered to be paid together with 12% interest from the date of the adjudication till realization.
6. The learned counsel for the appellant has fairly submitted that it has been well settled that daily allowance paid to a workman forms a part of the monthly wages earned by the workmen. Hence, he has not pressed the substantial question of law No.1. Accordingly, in respect of the said substantial question of law No. 1, it is held that the daily allowance paid to a workman forms part of wages and, as such, there is no infirmity in accepting the daily allowance as part of wages by the learned Commissioner.
7. The learned counsel for the appellant submits that the assessment of loss of earning capacity at 40% by the learned Commissioner was contrary to the evidence on record as well
