NEW INDIA ASSURANCE CO LTD Vs. DAYA RAM

JUDGEMENT

(1.) This appeal is arising out of the judgment and award dated 10th May, 2007 passed by the Commissioner, under the Workmen's Compensation Act, 1923 (hereinafter called as the "Commissioner"), Kanpur Region, Camp Etawah in Case No. 8 of 2005 (Daya Ram and another v. R.D. Electricals Contractor and another) on account of death of the deceased while working on the high tension line. Five consecutive deaths were occurred. The claim petitions have been made by the claimants saying that a sum of Rs. 3,045/- was the salary of the deceased but ultimately at the time of hearing the employer stated that such persons were kept in the muster roll and the daily wages of the muster roll employees were Rs. 145/- per day. Therefore, awarded amount was increased from the claimed amount on such fact.

(2.) Now the question arose as to whether the Commissioner is empowered to pass an award more than the claim amount or not. According to us, normally it can not exceed. However, such rule, according to us, cannot be inflexible in nature. A clamant, either for his illiteracy or for lack of knowledge or for situation arrived on account of death or injury, may not be in a position to calculate the entire claim and give the particulars accordingly to confine on it rigidly. It is duty of the Commissioner, in such circumstance, to direct the claimant to amend the claim. But by not doing so the Commissioner has not done any illegality. Irregularity, if any, can be condoned when objector/the employer itself supplied the materials to the Court in support of such enhancement. Therefore, having no objection Court proceeded accordingly towards a victim but not wrongdoers. If we take the example of the suit regarding money claim, normally a principle sum is mentioned in the part of relief claimed leaving aside others and if ultimately the suit succeeds, decreetal amount, if added, may increase than the amount of claim but Court cannot be debarred from granting such decree. Atbest, the Court can seek for putting further Court fees for such excess amount of decree. Similarly, when a suit is not for money claim simplicitor and if money decree is passed, similar principle will be followed. The requirement of the Court is to determine the cause on the facts and circumstances of each case. The observation of ours cannot be treated as precedent in respect of all claims but in respect of the claim when the opposite party itself says that the claim amount will be on the basis of their own document regarding income. The objectors are proposers in this case to call upon the Commissioner to pass an award on the basis of their own statement. This situation is so special that the same cannot be equated with the applicability in general. Hence, we do not find any material to interfere with the judgment and award in this appeal on that cause.

(3.) Next question arose with regard to the employer and employee relationship, to which it is an admitted position that the deceased were working in the muster roll. According to us, such relationship is good enough for the purpose of getting compensation for their respective works. It is also contended by the learned Counsel appearing for the appellant that they (the deceased persons) have worked without safety guard, to which this Court disbelieves suchstatement on the reasoning that without supervision of work nobody can be allowed to work on the high tension line and death of five persons, in such circumstances, can not be held to be a normal incident.