Case: Jaya Biswal  Vs. Branch Manager, Iffco Tokio General Insurance Company Ltd.

The elder son of appellant Nos. 1 and 2 worked as a truck driver with one Bikram Keshari Patnaik (respondent no. 2 herein). On 19.07.2011, he met with an accident while on his way to deliver wheat bags in the truck from Berhampur, Orissa to Paralakhemundi, Andhra Pradesh. He sustained severe injuries on the back of his head and died on the spot. The cleaner of the truck, who was present at the time of the accident, gave information regarding the accident to the Mandasa Police Station, Srikakulam, whose personnel reached the spot and conducted the inquest, prepared the panchnama and sent the body of the deceased for post mortem. The cleaner also informed the father of the deceased (Appellant No.1 herein), who made arrangements for taking the dead body of his son back to the native village for cremation. On 03.11.2011, the appellants, being the father, mother and younger brother of the deceased, filed claim petition W.C. Case No. 61 of 2011 before the Court of the Commissioner forCompensation, Berhampur, Ganjam District. The claim of the appellants was that the deceased was aged around 26 years at the time of death and had died while he was in and during the course of employment of respondent no. 2 herein. They claimed that he was getting monthly wages at Rs.4,000/- per month, daily bhatta (allowance) at Rs.200/- which comes to Rs.6,000/- per month, along with additional trip benefit amounting to Rs.3,000/-, the total amounting to Rs.13,000/- per month. On this basis, they claimed a lump sum of Rs.18,00,000/- as pecuniary damages towards loss of past and future wages and loss of earning. They claimed additional amount of Rs.20,000/- towards funeral expenses, Rs.30,000/- towards mental agony, physical shock and pain, and Rs.50,000/- towards expectation of life and Rs.1,00,000/- towards loss of estate, inconvenience and hardships caused to the family members of the deceased on account of the death of deceased.4. In response, the owner of the truck, respondent no.2 herein filed a Written Statement and denied his liability. He claimed that he was not liable to compensate the deceased as he had died on the spot due to his own negligence, as he had tried to enter the vehicle while it was in motion. Respondent no. 2 also contended that in any case he is not liable to pay the amount as claimed by the appellants. He submitted in the Written Statement that he has been paying only Rs. 100/- per day as wages, and Rs. 50/- per day as bhatta. Further, he had already given financial assistance to the father of the deceased for the cremation. The learned Employees Compensation - cum- Assistant Labour Commissioner considered the above aspect of the matter at length and arrived at the conclusion that the deceased was working in the employment of Respondent no.2 at the time of his death and that he had lost his life in an accident caused during and in the course of his employment with Respondent no.2. The learned Commissioner relied upon the testimony of the witnesses to construct the following chain of events leading up to thedeceased was working as a driver in truck No. OR 15J-1047 owned by the O.P.I……On 19-07-2011 at about 4.30 A.M., the deceased received personal back head injury near Sandhigam village by vehicular accident arising out of and in course of his employment as a driver of the truck No. OR 15J-1047 which was loaded with wheat bags. He along with the cleaner Sarada Prasana Patnaik loaded the said wheat bags on 18-07-2011 at about 11.30 P.M. at godown. On the way, they stopped and kept the vehicle and took the rest and slept there on 18-07-2011. Another truck bearing No. OR 07B-8791 which was also followed with the offending vehicle had also halted and stopped there along with them. They all had taken rest and slept there and got up early morning at about 4.30 A.M. on 19.07.2011 and started to proceed to Paralakhemundi for unloading the goods. While to proceed, the deceased had started the vehicle but the vehicle did not start. Hence, the deceased and the cleaner got down from the vehicle and checked the battery box and removed the wooden log piece kept for obstructing the right wheel of the said truck. After removal of the wooden log piece, the vehicle moved to run down. The deceased saw that the vehicle was moving ahead, he immediately climbed into the vehicle through the iron stepping of the truck, but unfortunately, he fell down from the truck and sustained severe and grievous bleeding injuries on the back side of the head and died at the spot. The vehicle proceeded few distance on the public road and capsized in the field. Thereafter, he and the cleaner of the vehicle saw the condition of the deceased and had consulted with the village Revenue Officer of Sandigam village and told the fact. They immediately reported the matter to the police, Mandasa Police Station and informed the same to the O.P.I as well as to the father of the deceased.Further, Respondent no.2 had also admitted before the learned Commissioner that the death of the deceased had occurred due to an accident arising out of and during the course of the employment for which a compromise was sought to be reached by Respondent no.2 with the appellants, to the amount of Rs.3,50,000/-. Accordingly, the learned Commissioner came to the conclusion that the deceased was anwithin the meaning of the) and had died in an accident arising out of and in the course of his employment under Respondent no.2. The learned Commissioner, relying on the date of birth of the deceased as 01.07.1984, as mentioned in thelicense and Transfer Certificate, came to the conclusion that the age of the deceased was 27 years at the time of the accident. On the question of the monthly wages being earned by the deceased at the time of his death, the learned Commissioner concluded that the contentions advanced by Respondent no.2 that he was being paid wages of Rs. 100/- per day and bhatta of Rs.50/- per day cannot be believed. The vehicle in which the accident had occurred possessed a National Route Permit, and the deceased often drove the vehicle to destinations outside the state. He was also a highly skilled workman. In the light of the said fact stated by the appellants, the wages of Rs.4,000/- per month and bhatta of Rs.200/- per day and trip charges of Rs.3,000/- per month (i.e.Rs.13,000/- per month) seemed genuine. Accordingly, the learned Commissioner calculated the compensation as under:Rs.8,000/- (wage limited to) x 50% x 213.57 (27 years of age factor)= Rs.8,54,280/-The learned Commissioner further awarded an interest @ 12% per annum to the appellants from the date of accident, as well as Rs.20,000/- as the cost of proceedings, the total amount of compensation thus coming to Rs. 10, 75, 253/-.6. Aggrieved by the same, the Insurance Company filed an appeal under Section 30 of the E.C. Act before the High Court of Orissa at Cuttack. The learned single Judge allowed the appeal and set aside the award passed by the learned Commissioner. The learned single Judge of the High Court held asthe submissions made by the learned counsel for the parties and keeping in view the findings of the Commissioner as given in the impugned award with regard to the quantum of compensation amount awarded and the basis on which the same has been arrived at, I feel, the interest of justice would be best served, if the awarded compensation amount of Rs.10,75,253/- is modified and reduced to Rs.6,00,000/- However the award of 50% penalty with interest @12% per annum is not proper and justified and the same is accordingly waived. Accordingly, the claimants are entitled to modified compensation amount of Rs.6,00,000/- on which no penalty or interest is payable. The impugned award is modified to the said extent only.The present appeal has been filed by the appellants challenging the correctness of impugned judgment and order passed by the High Court.

Reasoning:
23. Since neither of the parties produced any document on record to prove the exact amount of wages being earned by the deceased at the time of the accident, to arrive at the amount of wages, the learned Commissioner took into consideration the fact that the deceased was a highly skilled workman and would often be required to undertake long journeys outside the state in the line of duty, especially considering the fact that the vehicle in question had a registered National Route Permit. The wages of the deceased were accepted as Rs.4,000/- per month + daily bhatta of Rs.6,000/- per month, which amounts to a total of Rs.10,000/-. The High Court did not give any reason on which basis it interfered with the finding recorded by the Commissioner on the aspect of monthly wages earned by the deceased. The impugned judgment does not even mention what according to the High Court, the wages of the deceased were at the time of the accident. Such an unnecessary interference on part of the High Court was absolutely uncalled for, especially in light of the fact that the appellant Nos.1 and 2 are old and have lost their elder son and they have becomejudgment and order of the High Court suffers from gross infirmity as it has been passed not only in ignorance of the decisions of this Court referred to supra, but also the provisions of the E.C. Act and therefore, the same is liable to be set aside and accordingly set aside.25. The monthly wage of the deceased arrived at by the learned Commissioner was Rs.10,000/-. The date of birth of the deceased according to theLicense produced on record is 01.07.1984. The date of death of the deceased is 19.07.2011. Thus, according to Schedule IV of the E.C. Act, the ‘completed years of age on the last birthday of the employee immediately preceding the date on which the compensation fellis 27 years, the factor for which is 213.57. Hence, the amount of compensation payable to the appellants is calculated as under:Rs.10,000/- x 50% x Rs.213.57 = Rs.10,67,850/-.Funeral expenses to the tune of Rs.25,000/- are also awarded.The total amount of compensation payable thus comes to Rs.10,92,850/-.26. Further, an interest at the rate of 12% per annum from the date of accident, that is 19.07.2011, is also payable to the appellants over the above awarded amount. In light of the unnecessary litigation and the hardship of the appellants in spending litigation to get the compensation which was rightly due to them under the Act, we deem it fit to award the appellants costs as Rs.