Point of Law: Section 4(1)(a) of Act contains Amount of compensation.

JUDGMENT :

Jyotsna Rewal Dua, J.

The insurer is in appeal against the judgment dated 31.12.2012 passed under Section 22 of the Workmen’s Compensation Act awarding compensation of Rs. 6,40,710/- to the claimant alongwith interest @ 7% per annum w.e.f. 23.09.2006 till realization.

2. Respondent No.1 filed claim petition with the averments that her son Sh. Subhkaran was working as a truck driver with respondent No.2. He was being paid salary @ Rs.2500/- per month +Rs.120/- per day diet money. Her son was unmarried and the only bread earner of the family consisting of his parents and two younger brothers. He met with an accident while driving the truck on 23.08.2006, which resulted in his death. Respondent No.2, the owner of the truck was proceeded ex-parte. The insurer opposed the claim petition. Learned Court below vide its judgment dated 31.12.2012 held that deceased Sh. Subhkaran was a workman within the purview of the Workmen’s Compensation Act. He died in the course of his employment. His monthly wages were taken as Rs. 2500/- + Rs. 3600 as monthly diet money. Thus in all, monthly wages of Sh. Subhkaran were assessed at Rs.6100/- . Age of Sh. Subhkaran at the time of his death was ascertained as 27 years, accordingly, relevant factor was taken as 213.57 as per Schedule IV provided under the Act. The amount of payable compensation was computed at Rs.3000 (6100/2) X 213.57= 6,40,710/-.

3. The only contention raised by learned Senior Counsel for the insurer is that the accident had taken place on 23.08.2006. At the relevant time, there was a cap imposed upon maximum income of the deceased workman in terms of Explanation II to Section 4 of the Workmen’s Compensation Act. In accordance with that cap of Rs.4000/-, the monthly wages of the deceased could not have been taken more than Rs.4000/- for calculating payable compensation.

4. The contention of learned Senior Counsel is well founded in law. Hon’ble Apex Court in (2020) 4 SCC 594 (K.Sivaraman & Ors Vs. P. Sathishkumar & Anr.) held that prior to the amendment of the Workmen’s Compensation Act by Act 45 of 2009, which came into force on 18.11.2010, by virtue of the deeming provision in Explanation II to Section 4, the monthly wages of an employee were capped at Rs.4000/- even where the employee was able to prove the payment of monthly wages in excess of Rs.4000/-. The Hon’ble Apex Court further held that the Amendment Act 45 of 2009 which deleted Explanation II to Section 4 of the Act would not be applicable to the accidents that occurred prior to coming into force of the amended Act. Relevant extracts from some paragraphs of the judgment read as under:-

“12 Section 4(1)(a) of the Act contains the following provision:

4. Amount of compensation.—(1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:—

13…….

14. By Act 45 of 2009, which came into force on 18-1-2010, Explanation II came to be deleted. Sub-section (1B) was introduced in Section 4 to read as follows:

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

15. The question before this Court is whether the benefit of Act 45 of 2009 deleting the deeming provision in Explanation II which capped the monthly wages of an employee at Rs 4,000 would also apply to accidents which took place prior to the coming into force of its provisions i.e. 18 January 2010 and where final adjudication is pending. In assessing whether the Act 45 of 2009 applies retrospectively, it is necessary to an