Relevant date is the date of accident and not the date of adjudication of the claim.

E.Padmanabhan, J.: The above appeal has been preferred challenging the order of the Commissioner of Workmen’s Compensation and Deputy Commissioner of Labour, Pondicherry, dated 23.7.2001 made in W.C.No.21 of 1997.

2. Heard Mr.R.Sivakumar, learned counsel appearing for the appellant and Mr.A.Senthilnarayanan, learned counsel appearing for the respondents. The respondents instituted W.C.No.21 of 1997 on the file of the Additional Commissioner or Workmen’s Compensation, Pondicherry claiming a compensation under Sec.10(1) of the Workmen’s Compensation Act, 1923 against the appellants herein for the death of their son employed by the first appellant herein in respect of the accident arising out of and in the course of employment as a cleaner under the first appellant. The claim has been made by the dependents of the deceased employee. The respondents claimed Rs.3 lakhs as compensation while alleging that the vehicle belonging to the first appellant herein was insured with the second appellant and they are liable to pay compensation for the personal injuries stained by the deceased Elumalai who died due to the accident on 4.8.1996 arising out of and in the course of employment as a cleaner in the vehicle PY-01 A 7353. The deceased was just 20 years at the time of accident and he was earning Rs.3,000 per month according to the respondents.

3. The second appellant herein denied the terms of employment and conditions of employment as well as the entire claim including the very accident itself and sustaining of injuries in the course of employment by the deceased Ezhumalai and his succumbing to injuries. The Commissioner for Workmen’s Compensation framed the following three points for consideration:

(i) Whether the applicant is a workman as per the definition in the Act and was working under the first opposite party at the time of accident?

(ii) Whether the accident took place out of and in the course of employment and the injury sustained is due to accident?

(iii) Who is liable to pay compensation and what is the quantum of compensation?

4. On the first issue, the Commissioner for Workmen’s Compensation recorded a finding that the deceased was a workmen as defined in the Act. On the second issue, the Commissioner recorded a finding that the deceased-employee Ezhumalai sustained personal injuries and died on the spot consequent to the accident that occurred on 4.8.1996 which incident as arose out of and in the course of employment. On the third issue, the Commissioner held that owner of the vehicle is liable to pay and the insurer with whom the vehicle was insured is liable to indemnify.

5. As regards the quantum of compensation the Commissioner recorded a finding that the deceased employee was earning Rs.3,000 per month at the time of accident, he was aged 20 years and awarded a compensation of Rs.3,36,000 in all in terms of Schedule IV of the Act read with the Workmen’s Compensation (Amendment) Act, 1984. In the result, the Commissioner awarded Rs.3,36,000 with interest at 12% per annum from the date of accident till date of deposit/realisation by order dated 23.7.2001.

6. Challenging the said order, the owner of the vehicle and the insurer of the vehicle have jointly preferred the present appeal. The counsel for the appellants mainly contended that even assuring the wages drawn by the deceased at the time of accident was Rs.3,000 per month, in terms of Sec.4(1)(b) Explanation II, the monthly wages has to be reckoned at Rs.2,000 and the total compensation should have been arrived at Rs.2,24,000 and award of any amount in excess of Rs.2,24,000 is illegal.

7. In this appeal, notice of motion was ordered by this Court on 20th February, 2002. The respondents have been served and they have entered appearance. The following substantial questions of law were advanced:

"(A) Whether the learned Additional Commissioner is correct in not fixing the wages of the deceased at Rs.2,000 as per Sec.4(1), Clause (b), Explanation II of the Workmen’s Compensation

Click Here to Read the rest of this document