IN THE HIGH COURTOFLJUDICATURE AT BILASPUR fCHHATTISGARHI Misc.AppeaI No.€^ OF 2005 B'rvision Bench APPELLANT INSURANCE Branch Manager, Oriental Insurance Company Ud., through its Branch Office, Supela, District Durg (CG) VERSUS RESPQNDENTS CLAIMANT ^ OWNER /f" AGENT ^,^w 1. Ramarao s/o M. Mallesh, aged '31 years, r/o Infront of Jagriti !/ /tf^ ' School, Near Bappa Flour Mill, i? /f\/ Chhawani, Bhilai, Tehsil 8s -\V/^A7 District Durg. (CG). 2. Harjinder Singh s/o Not Known, '^T/O 80, Sunder Nagar, Bhilai, / DistrictDiug(CG). 3. Sarvan Singh s/o Not Known, ' r/o Near Punjab Dairy, Tata Line ty Road, 18, Camp 1, Bhilai, District Dure (CG). APPEAL U/S'SQ QF THE WQRKMEN'S COMPENSATION ACT, 1923 AGAINST THE AWARD/ORDER DATED 2/^/2005 PASSED BY THE <-- COMMISSIONER, WORKMEN'S COMPENSATION, DURG IN CASE N0. - 34/KETE. B- l/WCA/2003 (NF1. 1 HIGH COURT OF CHHArTISGARH : BILASPUR M.A. No. 648 of 2005 Appellant Branch Manager, Oriental Insurance Company Ltd. Versus Respondents Smt. K. Jyoti 8s others And M.A. No. 649 of 2005 Appellant Branch Manager, Oriental Insurance Company Ltd. Versus Respondents Ramarao & others DB: Hon'ble Mr. Justice I. M. Quddusi 8s Hon'ble Mr. Justice Prashant Kumar Mishra Shri Ghanshyam Patel, Advocate for the appellant. Shri Arvind Dubey, Advocate for the Owner - Harjinder Singh. Shri B. P. Singh, Advocate for ftie Agent - Sarvan Singh None for the claimants, though served. O RD E R (Orall (Passed on this 23rd day of March, 2011) Per I. M. Quddusi, J. The aforementioned both the appeals are being decided by this common order as both the claim petitions were flled in regard to the accident occurred on 20.3.2002 by the vehicle - Truck, bearing registration No. M.K.T 944, which was owned by the respondent Harjinder Singh and insured by the Oriental Insurance Company. We have heard learned counsel appearing for the parties and perused the lower Court record. Brief facts, in nutshell are that on 20.3.2002 on the instructions of respondent - agent (Sarvan Singh), the Driver (Ramarao) and Helper (Ramdas) of the truck were returning to Bhilai after unloading the goods in Adarsh Rolling Mill, Tedhesara. On that day near Anjora the Driver of the Truck stopped the vehicle by the road side in order to check air pressure in the tyres of the truck. When the Driver and Helper both were checking the air pressure, one unknown Truck, whieh was being driven in a rash and negligent manner caine there and dashed both Driver and Helper. In that accident Helper Ramdas died on the spot and Driver - Ramarao received grievous injuries. Subsequently right leg of Driver Ramarao was cut from the portion below the knee and thus he got permanent disability/imputation. 4. Legal heirs of deceased Helper (Ramdas) iiled Clairn Case No. B/l/33/2003/WCAct/Fatal before the Commissioner, Workmen's Compensation, Dzirg for award of a total compensation of Rs. 1,75,000/- on the submissions that deceased was gettin^ Rs. 2000/- per month as salary and Rs. 30/- as daily allowance. Leamed Conunissioner, taking info consideration the facts situation and the evidence on record assessed the raonthly income of tbe deceased as 2900/- and by deducting 50% of fhe sum, looking to the age of the deceased as 30 years, multiplied the remainder Rs. 1450/- by the factor 207.98 provided in Schedule Iv of Section 4 of the Workmen's Compensation Act, 1923 for working out lump sum equivalent of coinpensation amount in case of perraanent disablement and death and thus awarded a sum of Rs, 3,01,571/-. It has been directed that the amount of compensation shall be paid to the claimants by the Insurance Company on the basis of indemnified liability and if the amount of compensation is not paid within oni month the ainount shall carry interest at the rate of 10% per annum from the date of the accident i.e. 20.3.2002. A penalty of Rs. 15,000/- has been imposed on the owner and agent and if the amount of penalty is not paid within one month the amount of penalty shall carry interest at the rate of 10% per annum fronA the date of the accident. \ '\. 5. Injured Driver (Ramarao) filed Claim Case No. 34/Ka.Ta.B-l/ WCAct/2003 before the Coinmissioner, Workinen's Compensation, Durg for award of a total compensation of Rs. 2,10,000/- on the submissions that due to the accident he got permanent disability/imputation as his right leg was cut from the portion below the knee. He was getting Rs. 2000/- per rnonth as salary and Rs. 50/- as daily allowance. Learned Commissioner taking into consideration the facts situation and the evidence on record assessed the monthly income of the deceased as 3500/- and by taking 60% of the sum for 80% of future loss of eaming capacity, considering the age of the injured as 30 years applying the factor 207.98, awarded a sum of Rs. 3,49,406/-. It has been directed that the amount of coinpensation shall be paid to the claimants by the Insurance Company on the basis of indemnified liability and if the amount of compensation is not paid within one month the amount shall carry interest at the rate of 10% per annum frora the date of the accident i.e. 20.3.2002. A penalty of Rs. 15000/- has been iinposed on the owner and agent and if the amount of penalty is not paid within one month the aiaount of penalty shall carry interest at the rate of 10% pr annum from the date of the accident. 6. The question of law in both the cases arises for consideradon are as under: (a) Whether on the facts and circumstances of the case the owner : of the vehicle was different to the principal employer and whether the Insurance Company is liable to pay the amount of compensation. (b) Whether the money given to the deceased Helper as Rs. 30/- per day and to the injured Driver as Rs. 50/- per day for taking food while traveling only, should be counted towards the income of fhe workinen. 7. In the written statenaent filed by the appellant/Insurance Company there was no plea that Harjinder Singh was not owner of the truck. The insurance of the vehicle in question was made in the name of Harjinder Singh showing him to be the owner. Therefore, the plea taken by the claimants that Harjinder Singh was the principal employer and Sarvan Singh was his agent cannot be ruled out in the absence of any contrary evidence. 8. Leamed counsel appearing for the appellant has raised contention to the effect that once a claim petition was filed before Commissioner for Workmen's Compensation in which application for amendment was rejected but later on the claiin petition was withdrawn with liberty to file an appropriate claim petition before a Court having jurisdiction, it was not open for the claimant to file another claim petition makin^ Harjinder Singh as party. To our view once the Commissioner, Workm.en>s Compensation allowed the claimants to withdraw the claim petition with liberty to file before a Court having jurisdiction, it was open for the claimants to file a fresh petition either before Motor Accident Claims Tribunal or before Commissioner for Workmen's Compensation. If they have chosen to file a fresh petition before Commissioner for Workinen's Compensation at subsequent stage also to our opinion, there is no illegality and the saine has rightiy been entertained. 9. With regard to the plea regarding principle employer Harjinder Singh, to our view the principal employer was a necessary party and in earlier claim petition, which was withdrawn, only the agent was made a party and the principal employer was not made a party. It was a mistake on the part of the claimants. 10. In view of the facts and circumstances we uphold the findings given by the Coinmissioner Workmen's Compensation in both the appeals in regard to the Uability part is concerned. 11. However, with regard to the calculation of coinpensation part we have seen that when the deceased as a helper used to go on traveUng he was being given Rs. 30/- for his food expenses, which could not have been counted as salary and allowances. It was paid only when fhe deceased used to go on traveling and if he was not traveling then there was no question of giving that amount to him. Therefore, the Coininissioner has wrongly included the amount of Rs. 30/- in assessing the monthly wages based on Rs. 900/- p.m. without considering that on the days when the deceased was not traveling he was not getting the food expenses. Therefore, the monthly salary of the deceased at Rs. 2000/-, assessed by the Tribiinal is only the 1actual salary of the deceased. Considering the age of the deceased as 30 years the factor of 207.98 shall be used for the 50% of the monthly income that means Rs. 1000/- x 207.98 = 207980/-. 12. Thus the Commissioner for Workmen's Compensation has assessed the compensation in excessive and therefore the impugned award dated 2.3.2005 passed in Case No. Ka.Ta. -B/l/33/2003/WCAct/ Fatal is modified to the extant that the claimants would be entitled to get Rs. 2,07980/- as compensaUon. 13. Four Hon'ble Judges Bench ot' Hon'ble Apex Court in a decision in the case of Pratap Narain Singb Vs. Sbrinivas Sabata and another (AIR 1976 SC 222) has held in paragraph 5 as under : "5. The expression "total disablement" has been defined in ' Section 2 (1) (1) of the Act as follows: (1) .."total disablement" means such disablement, whether of a temporaiy or permanent nature, as incapacitates BM— 14. 15. workman for all work which he was capable of performing at the time of the accident resulting in such disablement." It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent and fhe question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of peribnning at the time of the accident. The Conunissioner has examined the question and recorded his finding as follows: "The injured workman in this case is carpenter by profession. By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only. This is obviously a reasonabie and correct fmding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part I] of Schedule I, because it was not the appellant's case before the Gommissioner that ainputation of the ann was frora 8" from tip of acromion to less than 4 'A" below the dp of olecranon. A new case cannot therefore be allowed to be set up on facts wbich have not been admitted or established. In the above cited case the injured was a-carpenter and in the instant case the injured was a driver, who comes in the category of skilled laboiir, is similar to that of carpenter, who is also a skilled labour. There is amputation of the lcg below the knee and therefore he will not-b6 able to work as driver i.e. skilled labour and cannot work in the circumstances when he lost his leg below the knee and therefore there is 100% disablement. Leamed counsel for the appellant relied upon a decision of HonT^le Apex Court in Ramprasad Balmlki Vs. AnU Kuniar Jain and others (2008) 9 SCC 492, whereiii claimant driver claimed permanent disability in right leg arising out of the motor accident. In the medical check up he was declared unfit to drive a vehicle and on that basis of medical invalidation he was prematurely retired from service. In that case it was held by the Hon'ble Apex Court that High Court correctly proceeded on the assumption that the extent of pennanent disability suffered by the appellant/claimant is only 40% and not 100%. But this decision is related to Motor Vehicles Act, 1988 and not under fhe Workmen's Compensation Act, 1923. This judgment is passed by Two Judges Bench of Hon'ble Apex Court, whereas the decision in fhe case of Pratap Narain Singh (supra) is passed by Four Judges Bench of Hon'ble Apex Court under the Workmen's Coinpensation Act, 1923. { Therefore, in the instant case the principles laid down in the case of Pratap Narain Singh (supra) would be applicable. 16. In M.A.No. 649 of 2005, with regard to the calculation of compensation part we have seen that when the injured as a Driver used to go on traveling he was beiag given Rs. 50/- for his food expenses, which could not have been counted as salary and allowances. It was paid only when the injured used to go on traveling, if he was not traveling then there was no question of giving fhat ainount to him. Therefore, ttie Commissioner has wrongly included the ainount of Rs. 50/- in assessing the monthly wages, based on Rs. 1500/-, without considering that on the days when the injured was not traveling he was not getting the food expenses. Therefore, the monthly salary of the injured al Rs. 2000/-, assessed by the Tribunal is only the actual salary of the injured considering the ainputation sustained by the injured and his age as 30 years the factor of 207.98 shall be used for the 60% of thc monthly income and 80% of the loss offuture income that means Rs. 1200/- x 207.98 = 2,94,576/-. 17. Thus the Commissioner for Workmen's Compensation has assessed the compensation in excessive and therefore the impugned award dated 2.3.2005 passed in Case No. 34/Ka.Ta. - B-l/WCAct/2003 is modified to the extant that the claimant/injured would be entitled to get Rs. 2,94,576/- as compensation. 18. Leamed Commissioner for Workmens Compensation has awarded interest at the rate of 10% in both the above cases. However, sub-section (3) of Section 4A of the Act, 1923 provides that where any employer is in default in payiiig ihe compensation due under fhis Act within one month from the date it fell due, the Coinmissioner shall direct that the employer shall, in addition to the amount of th arrears, pay simple interest thereon at the rate of twelve per cent per aanum. Therefore, it is directeci that the claimants in both the cases " • shall be entitled to get the amount of compensation @ 12% per annum, instead of 10%, as has been directed by the Commissioner. Rest of the conditions mentioned in the impugned awards shall remain mtact. 19. In 'the result the M.A.No. 649/2005 and M.A.No. 648/2005 are allowed in part to the above extcnt. No order as to costs. . Sd/- I.M. Quddusi Judge Sd/- PrashantKumarMishra Judge Tliakur