BHASHYAGARLU NAYUDU Vs. RAMAYYA SETTI

JUDGEMENT

(1.) This appeal has been preferred by the dependant of a deceased employee under S. 30 of the Workmen's Compensation Act, 1923, hereinafter referred to as the Act. The deceased employee was a cleaner employed in a lorry service owned be respondent 1, S. V. Ramaya Setti, and that lorry was insured with respondent 2, the South Indian Insurance Company, Ltd. The deceased, Krishnappa Nayudu, died on July 24, 1961, in an accident which the lorry met at Krishnagiri in Salem district. On August 22, 1961, the appellant, who is the sole dependant of the deceased employee, issued a notice of claim of compensation under the Act through his lawyer both to the employer and to the insurance company wherein the basis of compensation was made of Rs. 120 as salary per month. That notice has been marked as Ex. P. 1 before the Assistant Commissioner for Workmen's Compensation in the enquiry held for determination of the compensation. The employer (respondent 1) sent a report to the Assistant Commissioner of September 9, 1961, reporting the fact that his cleaner, Krishnappa, had met with an accident and died in consequence. In the said letter he also stated that the deceased Krishnappa was being paid a monthly salary of Rs. 30 plus a consolidated batta of Rs. 50 per month. It further states that on receipt of advice from the Commissioner for Workmen's Compensation the employer would take up the matter with the insurance company (respondent 2). On November 13, 1961, the appellant who is the father of the deceased, filed a petitioner before the Assistant Commissioner for Workmen's Compensation claiming compensation and in the said petition, the particulars of the remuneration received by the deceased Krishnappa are stated as follows : (a) Rs. 60 basic salary. (b) Rs. 60 dearness allowance. (c) Rs. 34 travelling allowance. total Rs. 154. Thereafter, the Assistant Commissioner issued an endorsement to the employer stating that the statement made in respondent 1's letter dated September 9, 1961, has been disputed by the father of the deceased and he was directed to report immediately as to what was the exact salary that was being paid to the deceased ........ In response to the said endorsement, dated November 22, 1961, the employer wrote to the Assistant Commissioner by a letter dated nil informing him that the deceased was being paid Rs. 30 a month as salary without any dearness allowance and a batta of Rs. 3.50 per day and that whatever the father of the deceased had stated was false. Thereafter, notice of the enquiry was given both to the employer and the insurance company by the Assistant Commissioner and an enquiry was held. In that enquiry both the respondents remained absent and they were treated ex parte. The appellant was the sole witness examined before the Assistant Commissioner, and in his evidence, he stated that the deceased was drawing a basic salary of Rs. 60 per month and inclusive of batta, dearness allowance, travelling allowance, etc., he was clearing about Rs. 120 per month. This is all the evidence that was adduced before the Assistant Commissioner besides the notice issued on behalf of the appellant through his advocate (Ex. P. 1) already referred to.

(2.) The Assistant Commissioner, by his order made on 15 January 1963, determined the compensation payable under the Act at Rs. 900 on the basis that the deceased was drawing a monthly salary of Rs. 30 only. The ground for rejection of the balance of the claim made on behalf of the appellant was that "batta" cannot be included in the basic pay while arriving at the quantum of compensation payable to the dependants of the deceased, and that the report of the employer regarding the basic pay paid to the deceased has to be accepted. Section 4 of the Act provides for the determination of the amount of compensation on the basis of the monthly wages received by the deceased workman and the amount of compensation has to be computed in the manner prescribed by Sch. IV of the Act. The term "wages" has been defined in S. 2(m). It "includes any privilege or benefit which is capable of being estimated in money, other than a travelling allowance or the value of any travelling concession or a contribution paid by the employer of a workman towards any pension or provident fund or a sum paid to a workman to cover any special expenses entailed to him by the nature of his employment.

(3.) Therefore, the clear meaning of the Act is that compensation has to be computed on the basis of the wages as defined under the Act received by the deceased employee and not on the basis of any basic wages. This is a fundamental error into which the Assistant Commissioner has fallen in the exercise of his jurisdiction under the Act. He did not determine what wages the deceased was receiving from respondent 1 before the unfortunate accident. All that is excluded from the computation of wages is the travelling allowance or the value of any travelling concession paid to a deceased employee. While in his first report respondent 1 has mentioned that the deceased was being paid a basic salary of Rs. 30 a month and Rs. 50 as consolidated batta per month, in his reply to the endorsement received from the Commissioner he has stated that the deceased was being paid Rs. 30 a month as salary without any dearness allowance and a batta of Rs. 3.50 per day, thus deviating from his earlier statement that the deceased was being paid a consolidated batta of Rs. 50 per month. Respondent 1 did not choose to enter appearance and produce his account books and give evidence as to the exact wages which the deceased was being paid. The evidence of the appellant that the deceased was receiving consolidated sum of Rs. 120 a month remains uncontradicted. The Commissioner erred in a law in placing reliance on the contradictory reports made by the employer when the employer himself was not examined and the appellant was not afforded an opportunity to cross-examine him. Even in the first registered notice (Ex.P. 1) issued on behalf of the appellant it was mentioned that the deceased was being paid a salary of Rs. 120 and that statement has been adhered to in the sworn testimony of the appellant before the Commissioner. No doubt, in that sworn testimony, the appellant has stated that the said sum of Rs. 120 includes travelling allowance but it was not clarified what portion of Rs. 120 represented travelling allowance. In the petition, dated November 13, 1961, filed by the appellant before the Assistant Commissioner, the appellant has shown that the travelling allowance paid was Rs. 34 and if it is deducted from Rs. 120, the balance sum of Rs. 86 can be said to represent the wages which the deceased was receiving before his death, from respondent 1. Therefore, the only conclusion the Commissioner could have come to was that the wages received by the deceased was Rs. 86 a month and, if that be so, the compensation which the appellant is entitled under Sch. IV, as it was in force before its amendment in 1963, is Rs. 3,000. We may add that respondent 1 has remained absent in this Court and it is only respondent 2, the insurance company, that has contested the appeal. But, the insurance company, though served with notice of the proceedings before the Assistant Commissioner, did not choose to enter appearance and contest the claim or assist the Commissioner to arrive at the correct conclusion as to the wages paid.