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2015 Supreme(Gau) 1426
IN THE HIGH COURT OF GAUHATI
NISHITENDU CHAUDHURY, J.
UNITED INDIA INSURANCE COMPANY LTD. - Appellant
Vs.
GAYA ROY AND OTHERS - Respondents
Miscellaneous First Appeal No. 64 of 2005
Decided On : 19-03-2015
For the Appellant : S.S. Sharma and A. Sharma.
For the Respondent:N. Debnath, Advocates.
Headnote:
Compensation Act, 1923 - Section 30 – Accident claim - Insurance Company - Payment of compensation - Whether the learned Commissioner was justified to fasten the liability on the appellant-insurer in absence of payment of any additional premium made by the owner to cover the risk of a handyman, whereas the coverage of driver and one conductor alone was taken?Whether the learned Commissioner was justified to make the appellant liable to pay compensation in face of the decision of the Apex Court in Ramashray Singh Vs. New India Assurance Co. Ltd. and Others, (2003) 10 SCC 664-Whether the learned Commissioners finding, that the deceased handyman was one of the conductors of the bus, is correct?Whether the award of interest from the date of the accident is permitted, since the same is contrary to the decision of the Apex Court, reported in New India Assurance Co. Ltd. Vs. Harshadbhai Amrutbhai Modhiya and Another, (2006) 5 SCC 192 ?Whether the daily allowance paid to the deceased could have been included in the salary of the deceased to calculate compensation? –Held, learned WC Commissioner did not commit any error in fastening the liability of paying compensation on the insurance company - substantial question of law No. 4 is in regard to the interest on the compensation amount. The learned WC Commissioner has directed the insurance company to make payment within 30 days from the date of receipt of the order. It appears that the order was communicated vide Memo and immediately thereafter the insurance company made the deposit and so it does not appear that the insurance company committed any delay in making the payment. That being the position, fourth substantial question of law does not require any adjudication. The substantial question of law No. 5 deals with the question as to whether daily allowance can be calculated as part of salary. The question is no longer res-integra in view of the judgment passed by the Honble Supreme Court in Mohd. Ameeruddin and Another Vs. United India Insurance Co. Ltd. and Another, (2011) 1 SCC(Cri) 862. The Honble Supreme Court held that daily allowance has to be included into the salary of the deceased unless it is shown that it was not regularly paid. Having so found, all the substantial questions of law are decided in favour of the claimant and against the appellant– Appeal dismissed
Nishitendu Chaudhury, J.
This is an appeal under section 30 of the Workmen's Compensation Act, 1923 challenging the judgment and award dated 24.2.2005 passed by Workmen's Compensation Commissioner (hereinafter referred to as 'the WC Commissioner'), Guwahati in W.C. Case No. 272/2002. By that judgment and award, the WC Commissioner has awarded compensation of Rs. 3,06,180/- against the owner and directed the insurance company to make payment because of insurance coverage. One Gaya Roy, as claimant, instituted the workmen's compensation claim stating that her husband Maneswar Roy died on 7.7.2002 in course of his service in Bus No. AS-15/1245 owned by O.P. No. 1 Dipak Das and insured by O.P. No. 2 United Insurance Company Limited. A U/D case was registered at Sarbhog P.S. vide No. 08/2002 in regard to the death and investigated into. The deceased used to get Rs. 1,200/- as monthly salary daily allowance and his age was 50 years at the time of accident.
2. On notices being issued by the WC Commissioner, the opposite parties appeared. O.P. No. 1 by filing written statement admitted that deceased was his employee in the aforesaid bus and that he died on 8.7.2002 in course of his employment. The owner stated that Maneswar Roy was given Rs. 1,200/- as monthly salary and Rs. 3,000/- as maintenance per month. O.P. No. 2 insurance company filed another written statement denying the contents of the claim petition and also refusing to pay compensation unless the claim is proved. Upon such rival contentions of the parties, the WC Commissioner put the parties to prove their respective cases. The claimant examined 3 (three) witnesses. She was examined as PW1, Dr. Paresh Kalita was examined as PW 2 and O.P. No. 1 owner of the vehicle Dipak Das was examined as PW 3. Insurance company examined one Naba Kumar Doley as DW 1 and both the parties adduced documentary evidence. Upon consideration of the evidence led by the parties, the WC Commissioner arrived at the finding that deceased Maneswar Roy worked as a conductor of the bus and that he was drawing salary at the rate of Rs. 4,200/- per month including daily allowance. The learned WC Commissioner found that the case was covered by section 4(1)(a) of the Workmen's Compensation Act, 1923 and accordingly the compensation was assessed as follows:--
50% of Rs. 4,000/- x 153.09 = Rs. 3,06,180/-
The O.P. No. 1 employer was liable to make payment of compensation but since the vehicle involved in the accident was duly insured with the United India Insurance Company Ltd., the WC Commissioner directed the O.P. No.2 United Insurance Company Ltd. to make payment of compensation within 30 days from the date of receipt of the order. In default, interest at the rate of 9% per annum on the amount of compensation w.e.f. the date of accident was ordered till deposit is made. It is this judgment and award dated 24.2.2005 which has been brought under challenge in the present appeal. It is to be noted here that immediately after the judgment and award was communicated, the insurance company made deposit of the whole amount with the jurisdictional WC Commissioner on 6.7.2005.
3. While admitting this appeal under section 30 of the Workmen's Compensation Act, 1923 (now re-named as Employee's Compensation Act, 1923) the following substantial questions of law were framed by this Court:
(i) Whether the learned Commissioner was justified to fasten the liability on the appellant-insurer in absence of payment of any additional premium made by the owner to cover the risk of a handyman, whereas the coverage of driver and one conductor alone was taken?
(ii) Whether the learned Commissioner was justified to make the appellant liable to pay compensation in face of the decision of the Apex Court in Ramashray Singh Vs. New India Assurance Co. Ltd. and Others, (2003) 10 SCC 664.
(iii) Whether the learned Commissioner's finding, that the deceased handyman was one of the conductors of the bus, is correct?
