The court held that the Commissioner must adhere to the wage cap of Rs. 8,000/- as per the Central Government notification when calculating compensation under the Employees Compensation Act.

JUDGMENT :

01. One Rashid Ahmad S/O Fateh Din R/O Village Pallan Tehsil Billawar District Kathua (hereafter called ‘deceased’) while driving Bus No. UP-22T-0010 died on 02.05.2011 as a result of the accident having taken place on 22.04.2011 near Peepli, Haryana. His dependants i.e. Parveen Akhtar (wife) and children laid a claim for grant of compensation for his death under the Employees Compensation Act, 1923 with the Commissioner under Employees Compensation Act i.e. Assistant Labour Commissioner, Kathua (in short, "Commissioner") asserting therein that the deceased- Rashid Ahmad was employed as a driver of the offending Bus by the respondent No. 1 – Shashinder Shokeen, the owner of the offending Bus which was insured with the respondent No. 2 – Oriental Insurance Co. Ltd. It was claimed that the deceased was 48 years of age at the time of his death and was receiving monthly wages of Rs. 15,000/-.

02. Pursuant to issuance of a notice, the respondents - owner and insurer of the offending vehicle in question, appeared and filed objections, controverting the assertions made in the claim petition.

03. On the basis of the pleadings of the parties, the following issues were raised by the Commissioner for determination of the claim of the claimants:-

“i) Whether the deceased falls in the category of workman and was holding a valid driving license? OPP

ii) Whether the accident arose during and in the course of employment with non-applicant No. 1? OPP

iii) What was the age and wages at the time of accident? OPP

iv) Whether the non-applicants are liable to pay the compensation to the dependents? OPP

v) Amount of compensation/Relief.”

04. The claimants besides claimant-appellant No.1 herein-Parveen Akhtar examined Vijay Kumar and Darshan Singh as their witnesses whereas the respondents–owner and insurer of the offending vehicle failed to lead any evidence, before the Commissioner.

05. The Commissioner, vide his award dated 31.08.2013, decided the claim petition granting an amount of Rs. 6,77,800/- in favour of the claimants and against the respondents with the direction to respondent No. 2 - the insurer of the vehicle, to deposit the awarded amount with the Commissioner within 30 days, failing which the same shall be recovered alongwith interest and penalty as per the law.

06. The respondent – insurer aggrieved of the award has filed the instant statutory appeal under section 30 of the Employees Compensation Act, 1923, on various grounds. This Court, vide an order dated 24.08.2018, admitted the appeal on the following substantial questions of law:-

B) Whether the Commissioner below before passing the award was under legal duty to have satisfied himself that the mandatory requirement u/s 10 of the Act had been complied with by the claimants? It is humbly submitted that Respondents neither pleaded the service of notice u/s 10 before filing the petition nor made any such statement before the Commissioner. Whether in the absence of compliance of Section 10 of the Employees Compensation Act being mandatory, the petition was not maintainable without prior compliance of the same?

C) Whether the Commissioner was required to decide each issue separately by discussing the evidence and giving his finding and reasons for such finding on each issue? And

Whether Commissioner failed in its mandatory duty as provided under rule 32 to decide each issue after discussing the evidence by recording his finding on the same and giving reasons for the same?

I) Whether the Commissioner below could arbitrarily assume the wages of the deceased at Rs. 10,000/- p.m. when the Central Govt. as per notification dated 31.05.2010 issued by it under Sub Section (IB) of Section 4 of Employees Compensation Act after rechristening the Workmen Compensation Act as Employees Compensation Act had specifically provided that while working out the compensation the maximum wages can be taken at Rs.8,000/- p.m. only, even if the wages were claimed to be more than Rs.8000/- pm?

G) Whether the Commi