IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 Ins.APP.No. 47 of 2009() ------------------------ EIC.30/2004 of E.I.COURT, KOZHIKODE .................... APPELLANT/RESPONDENT ----------------------------- THE REGIONAL DIRECTOR, E.S.I. CORPORATION, THRISSUR. BY ADV. SMT.T.D.RAJALAKSHMY, SC, ESI CORPN. RESPONDENT(S): APPLICANT ------------------------ THE STANDARD TILE & CLAY WORKS (P)LTD., FEROKE. ADV. SRI.V.KRISHNA MENON SMT.P.VIJAYAMMA SRI.DEVIDAS.U.K THIS INSURANCE APPEALS HAVING BEEN FINALLY HEARD ON 12/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ---------------------------------- Insurance Appeal No.47 of 2009 ---------------------------------- Dated this the 12th day of January, 2010 J U D G M E N T --------------------- Pius C.Kuriakose,J. Smt.Rajalakshmi, learned counsel for the appellant has taken us through the various grounds raised in the memorandum of appeal. She has drawn our attention to a judgment of this court United Brewaries Ltd. v. E.S.I. Corporation) 2003(1)KLT 158. She argued that since the payment of attendance allowance arises out of the contract of employment and since payment is made pursuant to the provisions contained in the terms of settlement between employer and employee, payments cannot be reckoned with as part of the wages. We are unable to accept the arguments of the learned counsel. In the judgment of this court in United Brewaries' Case (supra) the subject matter was incentives paid as per terms of a settlement. But in the instant case the subject matter is attendance allowance paid on an yearly basis though pursuant to the terms of a settlement. Learned Insurance Court has relied on the judgment of a Division Bench of this court in MFA.No. Ins.Appeal.47/09 2 1115/1991, which specifically dealt with the question whether attendance allowance paid to the employees as incentive payment for encouraging more attendance will come within the scope of wages under Section 2(22). The learned court has found on the basis of the evidence which came on record in the case that the payment of attendance allowance by the respondent was made as an incentive to encourage employees to attend more days and that the terms of settlement contained provisions that it is open to the management to withdraw the above payment even unilaterally. The finding of the learned Insurance Court being a finding of fact based on evidence we are not inclined to decide the substantial question of law formulated by the appellant in favour of the appellant. The appeal will stand dismissed but in the circumstances without any order as to costs. PIUS C.KURIAKOSE, JUDGE. C.K.ABDUL REHIM, JUDGE. okb