NATIONAL INSURANCE CO LTD Vs. UDI BAI

JUDGEMENT

(1.) The present appeal has been filed by the appellant-Insurance Company being aggrieved by the judgment and award dated 26th May, 2006 rendered by learned Workmens' Compensation Commissioner, Udaipur in W.C. Case No. 17/2004. The deceased-driver, namely, late Mohan Lal Dangi S/o Chokha Dangi while working as driver of the insured vehicle number RJ-27-G-7198 met with an accident during the course of employment of respondent No. 5 Lal Singh S/o Bheru Singh Rajpat. The accident took place on 15th November, 2003 in which the deceased-driver Mohan Lal Dangi died. Since, the deceased-driver Mohan Lal Dangi died in accident during the course of employment of respondent No. 5, therefore, the claimants-respondent Nos. 1 to 4 herein, filed claim petition immediately thereafter and same was registered as W.C. Case No. 17/2004; and F.I.R. No. 173/2003 was registered with Police Station-Dungla, District Udaipur. While determining the income of the deceased-driver besides the monthly salary/wages of Rs. 3,000/- per month, the daily allowance of Rs. 50/- paid to the said driver, was also includes within the monthly wages of Rs. 4,500/- and thus same was reduced to Rs. 4,000/- per month as per Explanation II to Section 4 (1) (b) of the Workmen's Compensation Act, 1923 (for short, hereinafter referred to as 'Act of 1923'); and accordingly the compensation was determined at Rs. 4,15,960/-, which was directed to be paid with simple interest @ 12% per annum from 15th November, 2003, i.e. the date of accident. The determination order was passed by the learned Commissioner on 26th May, 2006 after about two and half years of the accident.

(2.) The two contentions raised by the learned Counsel for the appellant-Insurance Company, Mr. Jagdish Vyas are : (i) that the daily allowance of Rs. 50/- paid by the employer was in the nature of travelling allowance, which was paid to said driver do not fall within the ambit and scope of term "wages" as defined in Section 2 (m) of the Act of 1923; and (ii) that the interest on amount of compensation could not be directed to be paid from the date of accident itself but it was payable only after the date of adjudication order, namely, 26th May, 2006 and it is only the date of adjudication order that the amount of compensation can be said to be have fallen due in support of his contentions, he placed reliance on judgments delivered by 2 Judges Bench of Hon'ble Apex Court in the case of National Insurance Co. Ltd. v. Mubasir Ahmed & Anr., 2007 2 TAC 3and in the case of Kamla Chaturvedi v. National Insurance Co. & Ors., 2009 1 TAC 1.

(3.) On the other hand, learned Counsel appearing for the respondents-claimants vehemently opposed the said contentions and argued that (i) the daily allowance of Rs. 50/- paid to the deceased-driver (workman) was not in the nature of travelling allowance but was dearness allowance, also known as "Bhatta" and, therefore, same has been rightly held to be forming part of wages as same was not paid to meet incidental commuting charges or travelling charges and, therefore, same could not be described as travelling allowance; (ii) that the interest would be payable from the date of cause of action arising i.e. the accident only and, therefore, the Workmen's Compensation Commissioner has rightly directed it to be so paid from the date of accident. They further submitted that the aforesaid later decisions of the Hon'ble Supreme Court in the case of Mubasir Ahmed and Kamla Chaturvedi do not take into account the earlier judgment by the 5 Judges Constitution Bench of the Hon'ble Supreme Court of India in the case of Pratap Narain Singh Deo v. Shrinivas Sabata & Anr., 1976 AIR(SC) 222 and in the case of Padma Srinivasan v. Premier Insurance Co. Ltd., 1982 AIR(SC) 836 therefore, the 2 Judges later decisions relied by the Insurance Company are per-incurium and do not advance the arguments of the learned Counsel for the appellant-Insurance Company. They also relied upon Section 4 (A) of the Act of 1923 in support of their contentions that the word "fell due" in Section 4 (A) (3) of the Act refers to the date of accident when the cause for claiming such compensation for death or bodily injury arises and it is the date of accident itself and mere adjudicatory or litigatory process by which such compensation is determined by the Workmen Compensation Commissioner, does not shift or postpone the date when such compensation can be said to have fallen due, which Counsels argued, falls due on the date of accident itself, unless otherwise specifically defined and so excluded.