The court clarified that under the Employees Compensation Act, the monthly wages for compensation must not exceed the statutory cap, and additional allowances cannot be included without evidence of special expenses.

JUDGMENT :

Satyen Vaidya, J.

The challenge in the instant appeal is to the award dated 27.10.2016, passed by the learned Commissioner under the Employees Compensation Act, 1923, Amb, District Una (hereinafter referred to as the Commissioner) in case No. 3/WCC/09.

2. The appellant/insurer by way of instant appeal has assailed the award as to quantum of compensation awarded by the learned Commissioner below.

3. The claim petition was filed under Section 22 of the Employees Compensation Act by the legal representatives of deceased Sh. Vijay Kumar, who had died on 13.5.2007 while driving Truck No.HP-20A-8962 in the course of his employment with the employer.

4. The Truck No. HP-20A-8962 was owned by the employer and the deceased Vijay Kumar had been employed as a driver to drive the same.

5. It was claimed in the claim petition that the deceased Vijay Kumar was being paid salary of Rs.5000/- per month by the employer. In addition, he was being paid a sum of Rs.50/- per day for daily diet expenses. In this manner the total monthly wages of the deceased were claimed at Rs.6500/-

6. The truck was alleged to be insured with the National Insurance Company Limited (for short the insurer).

7. The deceased was stated to be 42 years old at the time of accident.

8. On the above premise the compensation was claimed.

9. The employer and insurer both contested the claim petition by filing their respective replies. The employer though admitted the factum of deceased being its employee, but denied the payment of wages as claimed by the claimants. As per employer, the deceased was being paid a sum of Rs.3000/- per month as wages.

10. The insurer raised the objection as to maintainability of the petition. It was also alleged that the deceased was not holding a valid driving license at the time of accident and for such reason the claimants were stated to be not entitled to the compensation.

11. Learned Commissioner held that the salary of the deceased was Rs.5000/- per month and in addition, he was being paid Rs.1500/- per month as diet money. Keeping in view the capping of income at Rs.4000/- per month as per Section 4 of the Employees Compensation Act, learned Commissioner held that the salary of the deceased could not be taken to be more than Rs.4000/- per month. However, the learned Commissioner added Rs.1500/- per month as diet money and thus held the total wages/emoluments of the deceased at Rs.5500/. The said figure was then divided by two and multiplied by a factor 178.49. Accordingly, the claimants were held entitled to a sum of Rs.4,90,847/-. In addition, the claimants have also been held to be entitled to interest at the rate of Rs.12% per annual from 27.09.2007 till the passing of award. Penalty of Rs. 1,00,000/- has also been imposed.

12. The insurer has been held liable to pay the compensation along with interest amount and the employer has been held liable to pay the penalty.

13. The appeal has been admitted on 21.12.2017 on the substantial questions of law :

1. Whether impugned judgment/award is against the provisions of Sections 3,4 and4-A of the Employee’s Compensation Act, 1923?

2. Whether calculation of compensation awarded by learned Commissioner under Employee’s Compensation Act, Amb is not in consonance with law of land as settled by the Apex Court?

3. Whether the appellant had proved on record that deceased driver was not holding a valid and effective driving licence at the time of the accident, the original licence having been proved to be fake, its subsequent renewal could not validate it and the appellant company had to be exonerated?

4. Whether learned Commissioner has committed mistake in awarding interest from the date of application?

14. I have heard the learned counsel for the parties and have gone through the record of the case.

15. The first question regarding which the parties have raised dispute is with respect to the monthly wages of the deceased at the time of accident. Learned Senior counsel for the insurer has placed the relianc