1 HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. FIRST APPEAL NO.97/2009 WITH CIVIL APPLICATION No.278/2009 New India Extrusions (P) Ltd. and another. ..Appellants -VERSUS- Niranja Trivedi. ..Respondent ......... Mr.A.Z.Mookhtiar, Advocate for the appellants. Mr.A.D.Shetty, Advocate for the respondent. .......... CORAM : A.P.DESHPANDE, J. DATED : 25th MARCH, 2009. P.C. : 1. By consent of the learned counsel appearing for the respective parties, this appeal is taken up for final hearing. 2. This is an appeal filed by the employer against the award passed by the Commissioner of Workmen's Compensation/ Judge, 3rd Labour Court, Mumbai dated 03.10.2008 awarding compensation to the respondent in the sum of Rs.3,32,246.37. 3. The learned counsel for the appellants, in the first place, has contended that the Trial Court has committed an illegality in arriving at the quantum of compensation inasmuch as the salary of 2 the deceased was Rs.5178/- and after multiplying half monthly salary by the relevant factor i.e. 128.33, the amount of compensation is quantified in the sum of Rs.3,32,246.37. In the submission of the learned counsel for the appellants, the explanation (2) to sub-section (1) of Section 4 of the Workmen' s Compensation Act provides that where monthly wages of a workman exceeds Rs.4000/-, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be Rs.4,000/- only. Thus, the salary ought to have been taken to be Rs.4,000/- per month and Rs.2,000/-, being half monthly payment, ought to have been multiplied by the relevant factor i.e. 128.33 and the amount so arrived at, would be the quantum of compensation payable to the respondent. 4. Both the learned counsel agree that the impugned award passed by the Trial Court needs to be modified to that extent. The amount, worked out by multiplying the half monthly wages by the relevant factor, comes to Rs.2,56,660/-. Both the learned counsel are in agreement that instead of quantifying the compensation in the sum of Rs.3,32,246.37, the same ought to have been Rs.2,56,660/- and thus, the learned counsel for the respondent has no objection for modifying the award to that extent. 5. The learned counsel for the appellants, in the next place, has submitted that the finding recorded by the Trial Court about the workman having met with an accident arising out of and in the course of employment is not correct. According to the appellants, the 3 workman had attended the office, however, had taken half day leave and thus, the accident could not be said to have occurred arising out of and in the course of employment of the workman. 6. The Trial Court, on appreciation of the relevant material on record, has held that the deceased had attended the office on 03.01.2005 viz. the date of accident and left the office by 11:45 with a view to attend the Income Tax Office and while proceeding to the Income Tax Office he met with an accident. The reason for rejecting the statement in the copy of the Form No.3 is proper. The said statement shows nothing which could suggest that the deceased had availed of half day leave and thus, met with an accident not arising out of and in the course of employment. 7. Perused the judgment, the same does not call for any interference except modification in the quantum of the amount of compensation as referred to herein above. 8. In the result, the appeal is partly allowed. The impugned award dated 03.10.2008 passed by the Trial Court stands modified and shall read thus:- The present appellants shall pay an amount of Rs.2,56,660/- along with interest at the rate of 12% per annum w.e.f. 03.02.2005 till its realization. 9. At this stage, the learned counsel for the appellants submits that he has deposited the entire amount as directed in the award. Thus, permission to withdraw the excess amount is made. 4 Permission granted. 11. The appeal is disposed of. In view of disposal of the appeal, the Civil Application does not survive and the same is also disposed of. JUDGE