1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.810 OF 2006 WITH CIVIL APPLICATION NO.6664/2006 New India Assurance Company Ltd. ...APPELLANT V E R S U S Sow. Indumati W/o Babanrao Jadhav and three others ...RESPONDENTS Shri S.G. Chapalgaonkar, Advocate for the Appellant. Shri S.A. Ambad and J.H. Jadhavar, Advocate for the Respondent Nos.1 to 3 Resp. No.4 served but panchnama not made CORAM : K.U. CHANDIWAL,J. DATE : 15/07/2009 PER COURT:- 1) Heard the counsel. The appeal raises substantial question of law as to whether the amount of compensation arrived at by the learned Commissioner is in accordance with law. 2) The deceased was cleaner/driver on the truck claimed to be drawing salary of Rs. 3,000/- + Bhatta of Rs.50/- per day. On the fateful day of 23rd January, 2005 at about 5.0 a.m. while the deceased was in the employment, in the process of taking the truck towards back side, he was giving signal to the driver and in the process of reverse due to rashness and 2 negligence on the part of driver, the deceased was crushed under the rear wheel and died on the spot. 3) The Insurance coverage of the vehicle and the employment is not in controversy. The short point as indicated above formulated is whether the compensation could be arrived to the tune of Rs. 4,98,082/-, as reached by the learned Commissioner by order dated 26/4/2006. 4) On analysing the evidence of the claimants it is apparent that there is no document from the truck owner or any other source to illustrate that the deceased was drawing more than Rs. 3,000/- or was getting Rs. 50/- per day. It was canvassed that the deceased was getting monthly income of Rs. 4,500/- from the Respondent No.1 truck owner. The learned Judge considering the age of the deceased applied factor of 221.37 and as stated earlier computed the monthly income to Rs. 4500/-. The monthly income of the deceased even by evidence of the claimant could not exceed Rs. 3,000/-. The learned Judge has considered Bhatta as Rs. 50/- per day, which was only available based on the work. It is not possible that on what occasion the deceased was entitled for such Bhatta charges. 5) Section 2(m) of Workmen's Compensation Act defines wages as under; 3 2. Definitions. (m) "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; 6) The deceased was cleaner/ driver engaged on the truck to coordinate the smooth movement of the truck or to assist the driver. The Bhatta that was paid to him will be in the form of special expenses. By virtue of nature of his employment it was naturally an external services and extra allowance. In this scenario, the Bhatta of Rs. 50/- claimed will not be in terms of wages. Corollary is the learned Commissioner could not calculate the same to add to the income of the deceased. 7) In this scenario of the matter, taking notional monthly income of the deceased to Rs.3,000/- and 50/- per day which comes to Rs. 1500/- per month and the multiplier of 221.37 brings the sum Rs.3,32,055/-. The claimants are also entitled for funeral expenses of Rs. 2500/- in terms of Section 4 (4) of Workmen's Compensation Act, 1923. Thus, the figure of claim comes to Rs. 3,34,555/-. 4 8) Hence order. The appeal is partly allowed. The original Respondent No.1 and 2 to pay an amount of Rs. 3,34,555/- to the Petitioners claimants alongwith interest at the rate of 12% p.a. as indicated in Section 4(3)(a) of the Workmen's Compensation Act, from the date of application till its payment. No costs. The claimants are entitled to receive the amount deposited in this court and residue, if any, to be paid to the appellant insurance Company on calculations. Civil Application No.6664/2006 is disposed of. ( K.U.CHANDIWAL ) JUDGE cmg/fa81006