IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (WCA) No. 266 of 2005 Reserved on :6th January, 2009 Date of Decision: 24th February, 2009 National Insurance Company Ltd. Appellant Versus Sh. Prem Singh and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.Ashwani K. Sharma, Advocate. For respondent No.1 & 2: Mr.Vinay Thakur, Advocate. For respondent No.3 : Mr.H.C.Sharma, Advocate. Sanjay Karol, J. The Insurer M/s National Insurance Company Limited has assailed the award dated 4th December, 2004 passed by the Commissioner, under Workmen’s Compensation Act, Theog, District Shimla, H.P. in Case No.9/99, titled as Shri Prem Singh and another vs. Shri Sanjeev Thakur and another. Shri Pavinder Singh was employed as a Cleaner with Shri Sanjeev Thakur, respondent No.3 herein. He was performing his duties on vehicle No. HP-09-1214 which met with an accident on 1.2.1998 due to rash and negligent driving of the driver. In the accident which took place near Bandar Sindari, Tehsil Kishangarh, District Ajmer, Rajasthan, said Shri Pavinder Singh died on the spot. The matter was reported to the Whether the reporters of Local Papers are allowed to see the Judgment? 2 police and FIR No.9/98 dated 1.2.1998 was registered with Police Station Bandar Sindari. His legal heirs i.e. father and mother filed a petition under Section 22 of the Workmen’s Compensation Act, 1923 (hereinafter referred to as the Act) claiming compensation. In his reply the owner admitted the deceased to be his employee who died in an accident but simply pleaded that since the vehicle in question was insured with National Insurance Company Limited, therefore, the liability was that of the Insurer. It was, however, pleaded that the deceased was getting a salary of Rs.500/- per month in addition to the food allowance. The Insurance Company, which was respondent No.2 in the original petition chose not to cause appearance and contest the petition and as such was proceeded ex parte on 14.7.1999. Based on the pleadings of the parties, the Commissioner framed the following issues:- 1. Whether the deceased workman was 17 years of age at the time of accident? OPP 2. Whether the deceased workman was getting wages as claimed in the application? OPP Evidence was led by the appearing parties and the claimant Shri Prem Singh examined himself as PW-1. The owner appeared as RW-1 and examined Shri Khem Chand, junior assistant of the office of Executive Magistrate, Shimla and also moved an application for summoning official witnesses from the office of the Insurer. The said application was allowed in terms of order dated 30.4.2004 and the statement of Shri Partap Singh, Branch Manager, National Insurance Company (RW-2), Shri Sobha Ram, Head Cashier, UCo 3 Bank, Kufri (RW-3), Smt.Archna Sharma, Development Officer, National Insurance Co. (RW-4) and Shri Daulat Ram, Licence Clerk, SDM Office, Theog (RW-5) and Shri Narinder Lal, Panchayat Secretary (RW-6) was also recorded. Appreciating the material on record (oral and documentary), the Commissioner decided Issue No.1 by holding that the age of the deceased was 16 years and 3 months. It took into account the copy of Pariwar Register (Ext.PA) issued by Panchayat Assistant, Gram Panchayat Kathog. While deciding Issue No.2 statements of PW-1 and RW-1 were taken into account and the salary of the deceased was determined to be Rs.2200/- per month. As per the statement of Shri Sanjiv Thakur (RW-1) the deceased was being paid Rs.1000/- per month in addition to Rs.40/- per day for meals. Therefore, a sum of Rs.2200/- was determined as monthly wages. Based on the same by taking half of the monthly wages and applying the factor of 228.54 a sum of Rs.2,51,394/- was determined as compensation. In addition thereto, interest @ 12% per annum from 1.3.1998 upto the date of the award i.e. 4.12.2004 amounting to Rs.1,78,489/- was also awarded in favour of the claimants. Thus a total compensation of Rs.4,29,883/- was awarded. Mr. Ashwani K. Sharma, learned counsel for the appellant, has assailed the impugned award on the following grounds:- 1. The Commissioner erred in determining the monthly wages of the deceased to be Rs.2200/-. According to him, the pleaded case of the owner was that the deceased was being paid Rs.500/- per month, 4 hence this figure alone ought to have been taken for determining the monthly wages. 2. Food allowance provided for by the owner could not have been taken into account for determination the monthly wages under the Act. He referred to and relied upon a decision of the Orissa High Court in Gopal Singh vs. Nilamani Pradhan, 1988 ACJ 244. 3. The accident took place prior to the amendment of the Act on 8.12.2000, hence in any event wages more than Rs.2000/- per month could not have been considered for the purposes of adjudicating the claim petition. 4. The interest ought to have been awarded from the date of the decision of the petition and not one month after the date of accident which has been wrongly so awarded by the Commissioner. In support of this submission, he has referred to and relied upon the decision of Apex Court in National Insurance Co. Ltd. vs. Mubasir Ahmed and another, 2007 ACJ 845 and decisions of this Court in New India Assurance Co. Ltd. vs. Tahira Begum and others, 2008 ACJ 463 and Executive Engineer and another vs. Ambika Sharma, 2008 ACJ 664. Per contra, Mr. Vinay Thakur, learned counsel for the claimants has supported the award for the reasons set out therein. He has referred to and relied upon a decision of this Court in Sita Ram vs. Satvinder Singh and another, Latest HLJ 2008 (HP) 1110, to contend that the interest is to be awarded one month after the date of the accident. He has also referred to and relied upon decisions of Madras High Court in Oriental Insurance Co. Ltd. vs. T.Pitchaimani and others, 1999 ACJ 587 and 5 Karnataka High Court in New India Assurance Co. Ltd. and another vs. Subhas, 2005 ACJ 479, to contend that food allowance has to be accounted for determining the monthly wages of the deceased employee under the Act. I have heard learned counsel for the parties and perused the record. In the claim petition, the claimants have categorically pleaded that “the deceased was getting monthly wages of Rs.1200/- plus other benefits”. PW-1 has also stated so on oath. However, there is no document to prove the same. Shri Sanjeev Thakur, in his reply has pleaded that deceased was getting a salary of Rs.500/- per month in addition to food allowance. However, while deposing on oath he clarified that he was paying a salary of Rs.1000/- per month in addition to Rs.50 – 40 towards food. The present appellant chose not to contest the petition. I see no reason as to why the statement of the owner should be disbelieved. Therefore, in my view, the Commissioner has correctly taken the figure of Rs.1000/- wages plus Rs.40/- per day food allowance as paid to the deceased. Section 2(1)(m) of the Act is extracted hereunder:- “ ‘Wages’ includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment”. Under this definition any privilege or benefit which is capable of being estimated in money, other than the one falling under the 6 four excluded contingencies are included within the term ‘wages’. If the sum paid to the workman besides the monthly salary is food allowance, then it partakes the character of an incentive. While considering the provisions of the Employees’ State Insurance Act, the Supreme Court of India in a judgment reported in Harihar Polyfibres v. Regional Director, E.S.I. Corporation, AIR 1984 SC 1680 and Regional Director, E.S.I. Corporation v. Bata Shoe Co., 1985 (51) FLR 616, held that the incentive bonus would be taken into account while determining the ‘wages’. The Madras High Court in Oriental Insurance Co. Ltd. vs. T.Pitchaimani and others, 1999 ACJ 587, has held as under:- “To what extent the learned counsel is right in contending that the said payment stands excluded from ‘wages’ according to the last exclusion clause in section 2(1)(m) of the Workmen’s Compensation Act remains to be considered. That exclusion clause uses the work ‘entail’ which means, according to the Concise Oxford Dictionary, 9th Edn., as follows: ‘necessitate or involve unavoidably’. Not only that this would ‘entail’ is preceded by the words ‘special expenses’. Therefore, it is clear that the expenses which are necessitated or unavoidably involved shall not be mere expenses but special expenses. ‘Special expenses’ is definitely different from ordinary expenses. The meaning of the word ‘special’ in the Concise Oxford Dictionary, 9th Edn., suitable to the situation is ‘exceptional; out of the ordinary; peculiar; specific; not general’. Therefore, to my mind, it appears that to bring a payment under the last of the exclusion clauses contained in section 2(1)(m) of the Workmen’s Compensation Act, 1923 it must be necessarily proved what the nature of the employment of the workman is and which entails on him special expenses. Taking a meal, 7 coffee or tea once or twice en route while on duty cannot be definitely brought under the words ‘special expenses’ since spending money under those heads mentioned above is part and parcel of the routine life. In other words, on a careful consideration of the last of the exclusion clauses referred to above, I am of the considered opinion that the special expenses entailed on a workman by the nature of his employment would only relate to expenses met by the workman for the benefit and for and on behalf of the employer himself. To bring a payment made by the employer to the workman under the fourth exclusion clause contained in section 2 (1)(m) of the Workmen’s Compensation Act, there must be necessarily pleading and evidence in that regard.” “In my opinion, the special expenses referred to in the last of the exclusion clauses contained in section 2(1)(m) of the Act cannot be related to any expenses of the workman himself, but it can be only related to a ‘special expense’ incurred or likely to be incurred in the nature of the employment for and on behalf of the employer by the workman. The contingency of a driver in a lorry reaching the place of destination, returning to the home station within a couple of hours is not uncommon and therefore there would be no need at all for him to spend on a meal or so but even then he will be entitled to the ‘batta’, can it be said that payment made to him in that contingency shall not be taken into account in computing the ‘wages’. For instance, if a driver takes ‘batta’ on the date of his duty and does not spend it at all for one reason or the other, can it be said that the employer is entitled to reimbursement. The answer is ‘no’. In other words, the payment paid to meet the special expenses, in the last of the exclusion clauses contained in section 2 (1) (m) of the Act is nothing but a reimbursement of the expenses either already incurred or proposed to be incurred by the driver for and on behalf of his employer.” 8 The Karnataka High Court in Karnataka High Court in New India Assurance Co. Ltd. and another vs. Subhas, 2005 ACJ 479, has held as under:- “The food allowance paid to a driver or cleaner is not a travelling allowance, which will definitely fall within the definition of ‘wages’ ”. The said view has been consistently taken by the other High Courts in Saundatti vs. Biyamma, 1967 (2) LLJ 130; National Insurance Co. Ltd. V. Obalesh, 200 ACJ 1329 (Karnataka); United India Fire & Genl. Ins. Co. Ltd. vs.. Vadivatha, 1982 ACJ (Supp) 75 (Madras); Divisional Manager, Oriental Insurance Co. Ltd. vs. Giriwal Trans. Corpn., 1994 L&IC 2655; New India Assurance Co. Ltd. V. Kotam Appa Rao, 1997 ACJ 529 (AP); Ouseph Mathai vs.. Mathew, 1981 ACJ 8 (Kerala); Karnataka State Road Trans. Corpn. V. Sundari, 1982 ACJ 288 (Karnataka); Hindustan Aeronautics Ltd. V. Bone Jan, 1971 ACJ 26 (Mysore). Therefore, in my view, the decision referred to and relied upon in Gopal Singh (supra) in any event is not a good law and of binding nature. The view taken by the other High Courts, such as, Madras and Karnataka High Courts are reasonable views and I am in full agreement with the same. Hence, I see no error in the award to that extent. The amendment in the Act took place on 8.12.2000. Prior to the amendment, the Act stipulated as under:- “4. Amount of compensation……………………….. Explanation II. – Where the monthly wages of a workman exceed two thousand rupees, his monthly wages for the 9 purposes of clause (a) and clause (b) shall be deemed to be two thousand rupees only.” Learned counsel for the claimants has fairly conceded that the awarded amount is required to be corrected to the extent that wages more than Rs.2000/- cannot be considered for the purposes of determination of compensation under the Act. Therefore, it is held that for the purpose of determination of compensation, the monthly salary/wages of the employee would be Rs.2000/-, half of which is Rs.1000/-. On the question of payment of interest, it is no doubt true that in Mubasir Ahmed (supra) the Apex Court has held that the interest would be due and payable from the date of determination of the amount due. But, however, the said judgment has been considered by this Court in Sita Ram (supra) and this Court by referring to an earlier decision of the Apex Court in Pratap Narain Singh Deo vs. Shrinivas Sabata and another, AIR 1976 SC 222, has held as under:- “9. The Apex Court held that the compensation falls due only after the adjudication is done and consequently interest can be awarded only from the date of adjudication. With due respect, it appears that the earlier judgment of the Apex Court in Partap Narain Singh Deo Versus Shrinivas Sabata and another, rendered by a Bench of four judges was not brought to the notice of the Apex Court while deciding the aforesaid case. Even the judgment rendered in the Kerala State Electricity Board Versus Valsala K., was not brought to the notice of the Apex Court. It is apparent that the judgment in National Insurance Co. Ltd. Versus Mubasir Ahmed and another is in direct conflict with the view taken by a larger Bench in Partap Narain Singh Deo Versus Shrinivas Sabata and another’s case. Reliance is also placed by the Insurance Company on a judgment of a learned Single Judge of this 10 Court in Executive Engineer and another Versus Ambika Sharma, 208 ACJ 64, wherein also the Single Judge relying upon the judgment of the Apex Court rendered in National Insurance Co. Ltd. Versus Mubasir Ahmed and another hold that interest could only be granted from the date of award. This judgment also does not take into consideration the Constitution Bench judgment in Partap Narain Singh Deo Versus Shrinivas Sabatta and another. Therefore, the said judgment is per incuriam.” “11. The Constitution Bench had already decided the question as to when compensation falls due in terms of the Workmen’s Compensation Act, 1923. Unfortunately, this decision of the Constitution Bench was not brought to the notice of the Apex Court while deciding National Insurance Co. Ltd. Versus Mubasir Ahamed and another,2007 ACJ 845. Therefore, I feel that this Court is bound by the judgment rendered by the Constitution Bench of the Apex Court and I accordingly hold that the compensation falls due on the date when the accident takes place and in case the same is not deposited within thirty days, the workman is entitled to claim interest at the rate of 12% per annum without having to show that delay in depositing the compensation was attributable to the employer. While taking this view, I am supported by a Division Bench judgment of the Kerala High Court reported in National Insurance Co. Ltd. Versus Rekha, 208 ACJ 886.” This view in fact has been taken by the Apex Court in Ved Prakash Garg vs. Premi Devi and others, (1997) 8 SCC 1. In Tahira Begam (supra), the liability is disputed both by the owner as also the Insurance Company for the simple reason that the driver was alleged to have driven the vehicle in a drunken condition. 11 In Ambika Sharma (supra), the jurisdiction for adjudication of the dispute under the Workmen’s Compensation Act was disputed as it was alleged that the Assistant Junior Engineer would not fall within the definition of ‘workman’ under the Act. In any event, I am in respectful agreement with the views taken by Hon’ble Mr. Justice Deepak Gupta, J. in Sita Ram (supra). Importantly, in the present case the accident or the liability to pay the compensation was not in dispute. Hence, in my view, the ratio of law laid down in Mubasir Ahmed (supra) is in any event not applicable and of binding nature and the claimants would be entitled for interest in accordance with the provisions of statute i.e. thirty days after the date of the accident which is the date when the amount would fall due. Therefore, I see no error in the award to that extent. However, the Commissioner has wrongly calculated the interest w.e.f. 1.3.1998 to 4.12.2004, which should be Rs.2,04,062/- instead of Rs.1,78,489/-. In view of the aforesaid findings, the substantial question of law framed with the grounds of appeal is answered accordingly. For the aforesaid reasons, the appeal is partly allowed and it is held that instead of Rs.4,29,883/- the claimants shall be entitled to the following compensation:- Half monthly wages Rs.1000/- Compensation Rs.1000 x 228.54 =Rs.2,28,540.00 Interest @ 12% w.e.f.1.3.98 to 4.12.2004=Rs.1,85,512.00 Total Amount: =Rs.4,14,052.00 In view of the disposal of appeal, CMP No.600/2005 is also disposed of. February 24, 2009 (Sanjay Karol), (C) Judge.