Dismissed

The Oriental Insurance Com.Ltd. v. Smt.Rarhin Bai and Ors.

Chhattisgarh HC6 Aug 2012MAC/238/2011

Case brief

AI extract

What is this about?

The Chhattisgarh High Court dismissed the insurer's appeal challenging the Commissioner's assessment of the deceased's monthly wages at Rs.2600. The Court held this was a legal error and affirmed the compensation award based on the Act's statutory definition of wages. The substantial question of law was answered in favor of the claimants and the appeal was dismissed.

What did the court decide?

The appeal filed by the insurer is dismissed without any order as to costs.

The Oriental Insurance Com.Ltd. Vs Smt.Rarhin Bai and Ors. — Chhattisgarh HC (2012) — LawSathi Research

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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IVl.A.(C)No.238of2011

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APPELLANT The Oriental Insurance Company Limited.

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VERSUS

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RESPONDENTS

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Smt. Rarhin Bai and others.

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•X

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For pronouncement of award:

^^.8.2012

Sd/-

N.K. Agarwal Judge

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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M.A.CNo. 238 of 2011

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APPELLANT The Oriental Insurance Company

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Limited, Durg, District Durg (C.G.)

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			VERSUS
	RESPONDENTS	1	Smt. Rarhin Bai, W/o Kunj	Bihari
			Verma, age about 36 years,
~~L		2.	Kunj Bihari S/o Dauram aged 41 years,	Verma,
(:,		3.	M/s Balaji Enterprises, G	aurivila,
			Street No. 14 ^{- "A",}Pragati Bhilai, District ^-Durg.	Nagar,
		4.	Junior Engineer, C.G.	State
			Electricity Division, Na District-Durg.	vagarh,
		5.	Executive Engineer, C.G.	State
			Electricity Division, Be District-Durg.	metara,
		6.	President, C.G. State El Division, Dangania, Raipur, D Raipur (C.G.)	ectricity istrict

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(APPEAL^{UNDERSECTION30OF THE WORKMEN'SCOMPENSATION} ACT-1923)

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(SB: Hon'ble Mr. N.K. Aaarwal. J.)

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Present : Shri Sudhir Agrawal, counsel for the appellant. Shri Anil Gulati, counsel for respondents No.1 & 2. Shri Tarun Dadsenarcounsel for respondent No.3 None for other respondents.

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AWARD

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(Passedon £,^.08.2012)

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•%-€^' teaa^ "'%i

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This is insurer's appeal against the award dated 16.12.2010 passed by the Commissioner for Workmen's Compensation-cum-Labour Court, Durg (for short 'the Commissioner') in case No. 52/WCAcV Fatal 2009. Facts necessary for disposal of this appeal are as under: , (i) Respondents No.1 & 2/claimants preferred claim petition under Section 22 of the Workmen's Compensation Act, 1923 (for short 'the Act') claiming compensation to the tune of Rs.3,39,570/- along with interest and penalty. (ii) As per claimants' case, Jaleshwar Varma, i.e., their son, while working under the employment of M/s Balaji Enterprises, sustained injuries on 09.09.2007, during the course of employment, resulting in his death. Jaleshwar Varma was aged about 19 years and was earning Rs.100/per day. (iii) The employer, by filing its written statement, admitted the relationship of . employer and employee between it and deceased - Jaleshwar Varma and also admitted that Jaleshwar Varma died pursuant to injuries sustained by himduring the course of his employment. Wages of

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deceased at the rate of Rs.100/- per day was also admitted.

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(iv)

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The appellant/insurance company did not deny specifically the above, facts in the written statement filed by it nor did deny the issuance of policy. However, the appellant denied its liability on the ground that employer breached the conditions of policy.

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The Commissioner framed issues. Parties led evidence.

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The Commissioner, vide award impugned, holding the appellant liable for payment of compensation and assessing the income of deceased as Rs.2600/- per day, awarded Rs.2,92,786/- along with interest @ 10% per annum, without awarding any penalty.

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As the appellant's witness could not point out in his statement how and in what manner, any of the conditions of the policy has been breached by the employer, therefore, this Court admitted this appeal on 10.04.2012 on the following substantial question of law:

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"Whether the learned Commissioner for Workmen's Compensation, Labour Court, Durg, was justified in fixing the income of the deceased as Rs.2600/- per month for the purpose of computation of compensation?."

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Y •

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Shri Sudhir Agrawal, learned counsel appearing for the appellant, would submit: the deceased used to earn only Rs.65/- per day and was working at the most 20 days in a month, and therefore, the Commissioner has legally erred in assessing the monthly wages of deceased as Rs.2600/- and in awarding Rs.2,92,786/- as compensation to the claimants.

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Per contra, Shri Anil Gulati, learned counsel appearing for respondents No. 1 & 2 supported the award and submitted: the employer itself admitted the fact that deceased was getting Rs.100/- per day; even if the muster roll (Ex.D.2) is taken into consideration, Jaleshwar Varma was earning Rs.85/- to Rs.87/per day; the Commissioner has taken into consideration the wages of deceased as Rs.2600/- per month only, therefore, there is no legal error in assessing the monthly wages of deceased by the Commissioner and the appeal, on the face, is devoid of merit.

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I have heard the counsel appearing for the parties and perused the award impugned including records of the Commissioner.

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Section 5 of the Act reads thus:

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"5. Method of calculating wages.—In this Act and for the purposes thereof the exppession "monthly wages' means the amount of wages deemed to be payable for a month's service (whether the wages are payable by the month or by whatever other period or at piece rates), and calculated as follows, namely:—

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(a) where the workman has, during a continuous period of. not less than twelve months immediately preceding the accident, been in the service of the employer who is

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liable to pay compensation, the monthly wages of the workman shall be one-twelfth of the total wages which have fallen due for payment to him by the employer in the last twelve months of that period;

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(b)where the whole of the Continuous period of service immediately preceding the accident during which the workman was in the service pf the employer who is liable to pay the compensation was tess than one month, the monthly wages of the workman shall be the average monthly amount which, during the twelve months immediately preceding the accident, was being earned by a workman employed on the same work by the same employer, or, ifthere was no workman so employed, by a workman employed on similar work in the same locality;

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(c) in other cases [including cases in which it is not possible for want of necessary information to calculate the monthly wages under clause (b)], the monthly wages shall be thirty times the total wages earned in respect of the last continuous period of service immediately preceding the accident Trom the employer who is liable to pay compensation, divided by the number of days comprising such period.

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Explanation.^— A period of service shall, for the purposes of this section be deemed to be continuous which has not been interrupted by a period of absence from work exceeding fourteen days.

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Under the Act, the Commissioner has a duty to see that the injured party, usually a coolie, ignorant of the law, gets fairplay. The provisions of the Act so far as the calculation of compensation is concerned, are mandatory. The Commissioner has nojurisdiction to give less compensation than that laid down in the Act.

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Coming to the facts of the present case, as per employer's written statement and evidence, the daily wages of deceased - Jaleshwar Varma was Rs.100/- per day. Even as per muster

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roll (Ex. D.2), the daily wages of deceased was about Rs.85/- to Rs.87/- per day, and monthly wages of deceased was not less than Rs.2600/-.

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.4-..

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Therefore, on the face, the Commis?ioner has not committed any legal error in assessing the wages of deceased as Rs.2600/- and in awarding the compensation accordingly. The substantial question of law formulated is answered accordingly in favour of the claimants.

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In view of above, the appeal fails and is hereby dismissed.

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No order as to costs.

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Sd/N.K. Agarwal Judge '^t'

The Oriental Insurance Com.Ltd. v. Smt.Rarhin Bai and Ors.

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Com.Ltd. v. Smt.Rarhin Bai and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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