Decided on July 16,2003



- (1.) Appellant in this case questions Award of the Commissioner for Workmens Compensation in W.C.C.No. 3 of 2001. The husband of the second respondent died during the course of employment. Appellant is a construction contractor. Deceased was working as a helper of the appellant and he fell down from the second floor of the building and succumbed to injuries on the next day. Dependants claimed compensation claiming that deceased was aged 35 years and was in receipt of Rs. 1,500 as wages per month. Commissioner fixed income at Rs. 2,000 and awarded compensation. The contention of the appellants are three. First of all deceased was not a workman entitled to compensation under Workmens Compensation Act (hereinafter referred to as Act). Secondly it was contended that even if he is a workman, he claimed monthly income as Rs.1,500 and fixing it as Rs.2,000 is illegal. Thirdly it is contended that there was undue delay in filing application and some amount was paid at the time of accident and hence direction to pay interest at 12 per cent per annum from the date of accident is illegal.
(2.) With regard to the first contention, according to the appellant itself, claimant was employed by his Supervisor on that date for his own construction business. He was engaged for the purpose of appellants trade or business and he was paid by the appellant. Therefore his employment is accepted and it cannot be contended that he was not a workman. To be a workman as defined under S.2(n) of the Act, one need not be a permanent workman and contract of employment can be express or implied, oral or in writing. Deceased was employed in the construction business and his employment was specified in Serial No. (VIII) of Schedule II of the Act. Even casual workmen employed for the purpose of trade or business is a workman (See Kochappan v. Krishnan, 1987 KLJ 310 ). From the evidence it is found by the Commissioner that workman met with the accident during the course of employment and it was raising out of employment.
(3.) With regard to income, appellant himself deposed before the Court that his daily wage was Rs.100 and he was employed only for one day. Even if it is so, monthly wages has to be calculated as per S.5 of the Act. When statute prescribes a particular method for calculating monthly wages Commissioner or Court cannot deviate from the same. S.5(b) and (c) are as follows: (b) where the whole of continuous period of service immediately preceding the accident during which the workman was in the service of the employer who is liable to pay the compensation was less 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, if there was no workman so employed, by a workman employed on similar work in the same locality; (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 from the employer who is liable to pay compensation, divided by the number of days comprising such period. This case is coming under S.5(c) and monthly wages can be assessed at Rs. 3,000 if the daily wage is Rs.100. But as per S.4, Explanation II of the Workmens Compensation Act as existed on 20th June 1996, the date of accident, only Rs. 2,000/- can be fixed as monthly wages for the purpose of calculating compensation. Even if minimum wages payable for construction workers are taken into account, he will get more than Rs.2,000. Dependants in the application stated that monthly wages of the deceased was only Rs.1,500. Notwithstanding the claim, dependants are entitled to compensation as provided under law. Compensation has to be calculated strictly as provided under the Workmens Compensation Act. Amount claimed in the appeal is not a bar for the Commissioner to award due compensation according to law. In fact it is the legal duty of the Commissioner to award compensation calculated as per the provisions of the Act. Being a welfare legislation, aiming at social security a rigid interpretation is not possible and Commissioner had power to award compensation more than what is claimed in the application. Finding of the Commissioner that Rs. 2,000 is the monthly wages of the deceased is a finding of fact and not a substantial question of law that can be contested in appeal under S.30 of the Act.;

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