ORIENTAL INSURANCE COMPANY LTD Vs. JOYA GHOSH

JUDGEMENT

(1.) The facts for disposal of this appeal in a narrow compass are that Dibakar Ghosh, husband of Respondent No. 1, was employed by Smt. Seva Ram Biswas, respondent No. 2, as driver of the vehicle No. AS-18/3337 and the vehicle was insured with the appellant Oriental Insurance Company Ltd. On an incident on May 10, 2001 Dibakar Ghosh, the driver of the vehicle, sustained injuries and ultimately succumbed to his injuries. A claim petition was filed by the respondent No. 1, wife of the deceased driver, before the Commissioner, Workmen's Compensation, Kamrup, Guwahati. It is an admitted fact that the deceased was an employee of the respondent No. 2, the owner of the vehicle, for two days only prior to the date of accident and he was paid an amount of Rs. 100 per day. The Commissioner, Workmen's Compensation has calculated the monthly wages of the deceased at Rs. 3,000 per month and on that basis the award was made. Aggrieved by the award, the appellant-insurance Company preferred the present appeal.

(2.) The only submission made by the learned counsel for the appellant Insurance Company is that the Commissioner, Workmen's Compensation has not calculated the monthly wages in accordance with the provisions of Section 5(b) and (c) of the Workman's Compensation Act, 1923. The submission of learned counsel for the appellant is that the calculation of monthly wages should have been on the basis of the minimum wages applicable to the nature of employment carried out by the deceased. The minimum wages under the Minimum Wages Act for the work of a driver was Rs. 67 per day, and therefore, the Commissioner, Workman's Compensation should have calculated the wages on the basis of the minimum wages, which has been fixed by the Government for similar nature of work that has been carried out by the deceased workman.

(3.) Section 5 of the Workmen's Compensation Act prescribes the method and manner in which the monthly wages of a workman shall be calculated. Clause (b) of Section 5 covers the cases, where the workman's whole of the continuous period of service immediately preceding the accident is less than one month. Admittedly, in the present case, the deceased workman served his employer less than a period of one month, therefore, the monthly wages is to be calculated I as per the provisions of clauses (b) and (c) of Section 5. To appreciate the submissions made by the learned counsel for the appellant it would be apposite to look into Section 5 of the Workmen's Compensation Act, 1923, which ; reads as under: