MANOJ.K.V v. KHALEEL.C.P and M/S UNITED INDIA INSURANCE COMPANY LTD.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH TUESDAY, THE 27TH DAY OF FEBRUARY 2018 / 8TH PHALGUNA, 1939 **MFA.No. 125 of 2014** AGAINST THE ORDER IN E.C.C.No.2/2014 (Old No.WC.No.18/11 of E.C.C., KANNUR)OF THE COURT OF EMPLOYEES' COMPENSATION COMMISSIONER (INDUSTRIAL TRIBUNAL),KOZHIKODE DATED 12-08-2014 ## **APPELLANT** /APPLICANT MANOJ.K.V,S/O BALAKRISHNAN, KUNNATH VALIYAVALAPPIL HOUSE, NAMBOLAN MUKKU, KOYYODE P.O, KANNUR. BY ADVS.SRI.A.K.SRINIVASAN SRI.JIMMY GEORGE SRI.A.S.BENOY RESPONDENTS/OPP PARTIES,: 1. KHALEEL.C.P, RASEENA'S P.O MUZHAPPILANGAD, KANNUR 670662. 2. M/S.UNITED INDIA INSURANCE COMPANY LTD., CALTEX JUNCTION, KANNUR 2. R2 BY ADV. SRI.RAJAN P.KALIYATH R BY SRI.JOHN JOSEPH VETTIKAD THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 27-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ---------------------------------------------------- M.F.A.(E.C.Act) No. 125 of 2014 ---------------------------------------------------Dated this the 27[th] day of February,2018. ## **JUDGMENT** ## **Mary Joseph,J:** Appellant is the applicant seeking compensation before the the Commissioner for Employees compensation and I.T.Calicut (in short 'the Commissioner'). In E.C.C.No.2/2014 (old No.W.C.C.No.18/2011) filed by the appellant, the Commissioner arrived at a compensation of `3,85,064/- and the second opposite party was directed to deposit the same with interest at 12% per annum w.e.f. 13.05.2010, the date of the said application and also `60,050/- towards medical expenses incurred by him, within 30 days of receipt of the said order, failing which, the amount was directed to be realised through revenue recovery proceedings. Aggrieved by the order to the extent his monthly wage was limited to `4,000/- and it was not reckoned as `9,000/- as claimed, the appellant has approached this Court in the captioned appeal. The parties to this appeal are referred to as the applicant and opposite parties 1 and 2 with reference to their status in E.C.C.No.2/2014. 2. The facts of the case need a brief description and therefore, are summarised as follows:- The applicant was a workman employed by the first opposite party as driver in a mini goods vehicle bearing Reg.No.KL- M.F.A.(E.C.Act).No.125 of 2014 -:2:- 13/Q 8881. On 13.5.2010, while driving the vehicle, a bus owned by the Tamil Nadu Government bearing Reg.No.TN-30/N-0886 proceeding from the opposite direction in its attempt to overtake a lorry, dashed against the same at NH 47 on the eastern side of Aathiyur Pirivu and thereby he sustained serious injuries. Based on the incident, the Perumanallur Police registered FIR No.570/2010 against the driver of the bus. In the accident, the applicant sustained open G.A.Type(Rt) and Tibial Plateau fracture with open knee injury. He was treated as in-patient for 56 days initially and subsequently on two different succeeding spells for 19 and 8 days respectively at Perumallur Mayura Hospital, Gobi Darshan Hospital and Justice K.S.Hegde Charitable Hospital, Deralakatte, Mangalore. The applicant was aged 44 years at the relevant time and was getting a monthly wages to the tune of `9000/-, inclusive of a sum of `1500/- received towards overtime in every month. The opposite parties did not accede his repeated demands to compensate him and therefore, he approached the Commissioner claiming compensation together with medical expenses incurred by him, to the tune of `10,06,608/- with interest at 12% per annum from the date of accident. The plea of the applicant was that being a workman employed by the first respondent and the motor accident having been arisen out of and in the course of employment M.F.A.(E.C.Act).No.125 of 2014 -:3:- resulting in permanent disablement to him, he is entitled to get compensation from the first opposite party. The vehicle having been insured validly with the second opposite party, a pleading was also raised by the applicant to the effect that the former is liable to indemnify the first opposite party. Accordingly, an application was preferred before the Commissioner as E.C.C.No.2/2014 seeking compensation. 3. In the counter statement filed, the first and second opposite parties had admitted the accident, but the nature of the employment, the wages and the age of the applicant were disputed. The insurance coverage of the vehicle at the relevant time was admitted by the second opposite party. 4. The applicant had let in oral evidence as AW1 and documentary evidence as Exts.A1 to A5. A court exhibit was also marked as Ext.X1. A compensation of 3,85,064/- was arrived at and₹ the second opposite party being the insurer of the vehicle was directed to pay the same with interest at the rate of 12% per annum with effect from 13.5.2010. A further sum of 60,050/- was also granted as₹ medical expenses incurred by the applicant in connection with the treatment, he had undergone, following the accident. It is aggrieved by the quantum of compensation so awarded by the Commissioner M.F.A.(E.C.Act).No.125 of 2014 -:4:- that the applicant has approached this Court in the captioned appeal. 5. The sole contention raised by the learned counsel for the applicant was that the Commissioner has erred in computing the compensation by taking 4,000/- as the monthly wages of the₹ applicant. It is contended by the learned counsel that though he had raised a claim before the Commissioner that he was getting `9000/- as monthly wages, the Commissioner failed to take that into consideration. According to the learned counsel, under the Workmen's Compensation Act, 1923, renamed as the Employees' Compensation Act, 1923, (for short 'Act 8 of 1923') the manner in which the compensation has to be computed is provided in Section 4. It is argued by the learned counsel that though _Explanation-II_ was there under Section 4 providing 4,000/- as a cap for the wages to be taken₹ for the purpose of computation, the same was deleted therefrom in the year 2010 by way of an amendment brought therein with effect from 18.1.2010. It is also contended by the learned counsel that after the deletion of _Explanation-II_ from Section 4, sub-section (1B) was introduced under Section 4 with effect from 31.5.2010. With the introduction of sub-section (1B), `8000/- was fixed as monthly wages for the purpose of computation of compensation w.e.f.31.5.2010. According to the learned counsel, an interregnum period was left in M.F.A.(E.C.Act).No.125 of 2014 -:5:- between 18.1.2010 till 31.5.2010, for which period, the Act remains silent with regard to the monthly wages to be adopted for the purpose of computation of compensation. It is contended by the learned counsel for the applicant that the accident in question having been occurred on 13.5.2010, strictly with the interregnum period, for which the Act was silent with reference to the monthly wages to be taken. According to him, situation being so, the E.C.Court ought to have adopted the monthly wages as claimed by the applicant in his application seeking compensation for the purpose of computation of compensation. 6. In the light of the submissions, we made a glance through Section 4 of Act 8 of 1923 and found that _Explanation-II_ was deleted therefrom w.e.f. 18.1.2010. It is true that the accident in question was occurred on 13.5.2010. By virtue of the Amendment Act 45 of 2009, sub-section (1B) was introduced under Section 4 of the Act w.e.f. 18.1.2010. The newly introduced sub-section (1B) reads as follows: “ _(_ _**1B** ) The Central Government may, by notification in the Official Gazette, specify, for the purpose of sub-section (1), such monthly wages in relation to an employee as it may consider necessary.”_ In exercise of the power conferred under sub-section (1B) of Section 4 of the Act, the Central Government is empowered to issue a M.F.A.(E.C.Act).No.125 of 2014 -:6:- notification, specifying the monthly wages in relation to an employee for the purpose of sub-section(1) of Section 4. Accordingly, the Central Government has issued a notification as S.O.No.1258(E) dated 31.5.2010 wherein, “Eight Thousand Rupees” was specified as monthly wages for the purpose of computation of compensation under sub-section(1) of Section 4 with effect from the date of publication of the Notification in the Official Gazette. The Notification is found as published in the Official Gazette on 31.5.2010. Therefore, `8000/- is fixed as the monthly wages to be considered for the purpose of computation of compensation w.e.f. 31.5.2010. Therefore, as rightly contended by the learned counsel for the applicant, the accident with reference to which the compensation was claimed was occurred at a time, when the Act is silent about the monthly wages to be taken for computation purposes. 7. The learned counsel for the applicant has submitted that the applicant is entitled for fixation of his wages based on his claim in E.C.C.No.2/2014, since his claim was made during the interregnum period when a provision was totally lacking in the Act to govern that. Accordingly, he has canvassed for a consideration of wages in accordance with the provisions of the Kerala Motor Transport Workers Payment of Fair Wages Act, 1971. According to him, in the absence of M.F.A.(E.C.Act).No.125 of 2014 -:7:- a specific denial in the counter affidavit filed by the first opposite party of the wages as claimed by the applicant, there was every justification for the Commissioner in fixing the monthly wages as per the claim made by the claimant in the application. Referring to Section 106 of the Evidence Act, the learned counsel has contended that the minimum wages paid to an employee, being a matter within the knowledge of the employer, it is his burden to establish that the applicant is not getting the wages as claimed by him. According to him, the first opposite party though had filed a counter statement, has not contested the application seeking compensation effectively. It is contended by the counsel that since the first opposite party, who has exclusive knowledge of the monthly wages paid to the applicant, failed either to controvert the same or prove otherwise, there was every justification for the Commissioner to take `9000/-, claimed by the applicant as the monthly wages received by him at the relevant time for the purpose of computation of compensation. According to the counsel, if the Commissioner was not prepared to consider the wages as claimed by the applicant for computation of compensation, it ought to have taken the wages in accordance with the Schedule under the Kerala Motor Transport Workers Payment of Fair Wages Act, 1971 (for short 'Act 23 of 1971')and reckoned the compensation accordingly. M.F.A.(E.C.Act).No.125 of 2014 -:8:- 8. Per contra, the learned counsel appearing for the second opposite party has contended that it is for the applicant to prove his wages by supporting materials and for want of proof, in no case, the compensation has to be computed on the basis of the wages as claimed by the applicant. It is also contended by the learned counsel that since the applicant is not an employee coming within the purview of Act 23 of 1971, the wages as per the schedule to the said Act cannot be taken for the purpose of reckoning compensation under Act 8 of 1923. The employer, as per the claim of the applicant, being a private party, and cannot be said to be a motor transport undertaking. According to him, even the applicant has no claim that he was employed under a motor transport undertaking run by the first opposite party. The learned counsel has drawn our attention to the relevant column contained in the application to mention the name of the employer to contend that the first opposite party is not running a motor transport undertaking and the engagement of the petitioner was not as a motor transport worker. The applicant was only engaged as a driver of the mini goods vehicle bearing Reg.No.KL-13/Q 8881 owned by the first opposite party. Therefore, the wages as fixed by the Schedule to the Act are not applicable in the case of the applicant for computation of compensation, he being not an employee of a motor M.F.A.(E.C.Act).No.125 of 2014 -:9:- transport undertaking. 9. Having heard the rival contentions advanced by the counsel representing the parties and having gone through the relevant provisions to which our attention is already drawn, we feel it appropriate to deal with the situation in the backdrop. 10. With regard to the first contention advanced by the learned counsel for the applicant regarding the wages to be considered in the matter of computation of compensation under Act 8 of 1923, we see some basis in the first contention advanced by the learned counsel for the applicant, going by Section 4 of the above Act. We have noticed that _Explanation-II_ has been deleted therefrom by Amendment Act 45 of 2009 with effect from 18.1.2010. By the very same Amendment Act , sub-section (1B) has been introduced into the Act with effect from 18.1.2010. Sub-section (1B), as we have already extracted hereinabove, conferred a power on the Central Government to issue a notification specifying the monthly wages to be taken for the purpose of computation of compensation and in exercise of the said power that the Central Government had issued a notification. A perusal of the notification would make it clear that it would be effective only w.e.f. 31.5.2010. Therefore, the monthly wages of `8,000/specified by the aforesaid notification would only be effective and M.F.A.(E.C.Act).No.125 of 2014 -:10:- applicable with effect from 31.5.2010. 11. It is true that the accident in question was occurred on 13.5.2010. Therefore, in the case of accident occurred to an employee, arising out of and in the course of his employment, during the interregnum period from 18.1.2010 till 31.5.2010, Act 8 of 1923 is silent regarding the monthly wages to be taken for the purpose of computation of compensation. Then the question crops up for consideration in the context is as to what could be the basis for considering the monthly wages for the purpose of computation of compensation payable to the applicant. Any how, the area being gray, this Court has to work out a solution to get over the situation. 12. We have taken that venture on our shoulder. Upon a scrutiny of the evidence available on record, it is disclosed that the claimant was thoroughly failed to adduce any evidence in that regard. The evidence on record consists of the oral evidence of the claimant as AW1 and the documentary evidence consists of Exts.A1 to A5 and X1. Ext.A1 is copy of the First Information Report. Exts.A2 to A5 are original discharge summary, discharge card, O.P. ticket and medical bills. Ext.X1 is a certificate assessing disability of the applicant. 13. As AW1, the applicant has tendered oral evidence to the effect that he was employed by the first opposite party to drive the M.F.A.(E.C.Act).No.125 of 2014 -:11:- mini goods vehicle bearing Reg.No.KL 13Q 8881 and while driving the vehicle, he met with an accident on 13.5.2010 and sustained personal injuries. The employer-employee relationship was admitted by the first opposite party. Therefore, the contention of the second opposite party disputing the employer-employee relationship assumes no relevance. The second opposite party though contested the claim petition, failed to adduce any documentary or oral evidence to disprove the claims made by the claimant in E.C.C.No.2/2014. Therefore, it remained an undisputed factum that the claimant was an employee under the first opposite party, that he met with an accident on 13.5.2010, that it arose out of and in the course of his employment as a driver in the mini lorry bearing Reg.No.KL 13 Q 8881 belonging to the first opposite party and that serious injuries have been resulted to him. The claim of the applicant was that he was getting monthly wages to the tune of `9000/-. Even as per the provisions of Act 8 of 1923, as it stands prior to amendment on 18.1.2010, the position was that even if the monthly wages of a workman exceeds `4000/-, his monthly wages for the purpose of computation of compensation shall be deemed to be `4000/- only. After the introduction of sub-section (1B) under Section 4 by way of amendment on 31.5.2010 also irrespective of the actual monthly wages received by a workman, M.F.A.(E.C.Act).No.125 of 2014 -:12:- `8000/- is deemed as the monthly wages to be adopted for the purpose of computation of compensation. Therefore, the intention of the legislature was clear that compensation has to be computed not with reference to the actual wages of the applicant, even if that is established by him by adducing cogent evidence. It is true that the Act is silent with regard to the monthly wages to be adopted in the case of the applicant who had met with an accident on 13.5.2010. However, the position stands prior to and after the amendment indicates that actual wages, even if established, is not to be taken for computation of compensation. Therefore, the argument of the learned counsel that monthly wages as it remained uncontroverted is to be taken for the purpose of computation of compensation payable to the applicant is untenable and therefore, is discarded. 14. It is relevant to notice from the evidence on record that the applicant failed to produce any materials to substantiate his claim that monthly wages to the tune of 9,000/- was received by him at the₹ relevant time. It is true that a claim has been raised, but he failed to establish the same by cogent materials. The contention of the learned counsel was that since the first opposite party has not specifically denied the monthly wages as claimed by him, and since it has not been proved otherwise by the employer, the Tribunal ought to have M.F.A.(E.C.Act).No.125 of 2014 -:13:- taken the monthly wages as claimed by the petitioner for the purpose of computation of compensation. According to the learned counsel, when there was no challenge with regard to the monthly wages from the employer, who is the first opposite party, the second opposite party, who is the insurer, cannot be heard to contend that the claimant was not receiving the monthly wages as pleaded in the petition. The learned counsel has placed reliance on Section 106 of the Evidence Act in support of his argument. Section 106 is apposite to be extracted hereunder:- ## _**“106. Burden of proving fact especially within knowledge** :-_ _When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”_ The learned counsel while canvassing that Section 106 of the Evidence Act specifically confers the burden upon the employer to establish the wages paid by him to the employee, since that was a factum within the exclusive knowledge of him, has disregarded the basic principle relating to the burden of proof as contained in Section 101 of the Evidence Act, which casts the burden strictly upon the party, who approaches the court for a judgment based on his legal right or liability to establish the existence of the facts which he asserts. Section 101 is extracted hereinbelow:- M.F.A.(E.C.Act).No.125 of 2014 -:14:- “ _101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist._ _When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”_ 15. In the case on hand, it is the applicant who desires the E.C.Court to determine the compensation, payable to him with regard to the injuries sustained by him in the accident occurred on 13.5.2010. Therefore, it is the burden of the applicant to furnish the necessary materials to establish that the injuries were received by him in an accident which has arisen out of and in the course of his employment with the employer. It is the burden of the applicant to establish that he was employed at the relevant time under the employer and was getting the monthly income as claimed by him. When these facts are not established, the court will not be in a position to arrive at a finding as to his entitlement and to compute the compensation payable to him. This is the primary burden for a party claiming a right and approaching a court, expecting a judgment to be passed in his favour. The aforesaid facts being relevant, the non-furnishing of the materials to establish those would only act to the detriment of the party. Only when the applicant establishes these facts, the onus will be shifted to the employer to prove on the contrary. Once the applicant fails to discharge the burden of proving the facts as above, the onus will never M.F.A.(E.C.Act).No.125 of 2014 -:15:- shift to the employer. Therefore, the said argument of the learned counsel also fails and discarded as devoid of any merits. 16. The third contention advanced by the learned counsel for the applicant was that the applicant is entitled for consideration of his monthly wages for the purpose of computation of compensation in accordance with the Schedule to the Kerala Motor Transport Workers Payment of Fair Wages Act, 1971(for short 'the Act, 1971'). In that connection, it is relevant for the applicant to establish that he is employed under a motor transport undertaking, as defined under the Act. 17. Act 23 of 1971 was enacted with a purpose “ _to provide for payment of fair rates of wages for motor transport workers in the State of Kerala and for matters incidental thereto_ .” What is meant by a motor transport undertaking is provided under clause(b) of Section 2 of the Act as follows:- '(b)” _motor transport undertaking”_ means a motor transport undertaking including a private carrier engaged in carrying passengers or goods or both by road for hire or reward.' As per clause (c) of the Act, _'(c)“Motor transport worker” means, a person who is employed in a motor transport undertaking directly or through an agency, whether for wages or not, to work in a professional_ M.F.A.(E.C.Act).No.125 of 2014 -:16:- _capacity on a transport vehicle or to attend to duties in connection with the arrival, departure, loading or unloading of such transport vehicle and includes a driver, conductor, cleaner, station staff, line checking staff, booking clerk, cash clerk, depot clerk, time keeper, watchman, or attendant.'_ As per clause (d) of the Act, _'(d)”fair wages” means the rate of wages payable to the motor transport workers specified int eh Schedule to this Act, or the agreed rate of wages whichever is higher.'_ From a glance of the aforesaid provisions, it is clear that Act 23 of 1971 would be applicable only in cases of workers, who are employed in a motor transport undertaking, which is engaged to attend duties in connection with arrival, departure, loading or unloading of such transport vehicle and includes persons engaged as driver, conductor, cleaner, station staff, line checking staff, booking clerk, cash clerk, depo _t_ clerk, time keeper, watchman, or attendant. Therefore, the Schedule appended to the said Act incorporating in it, provision for the wages would only be applicable to motor transport workers of the category referred to herein. 18. A learned Single Judge of this Court in **Aravindaksha Kurup** v. **Reghunathan Pillai (2005 (4) KLT 571)** has held that to be a motor transport worker, the worker should be employed in a M.F.A.(E.C.Act).No.125 of 2014 -:17:- motor transport undertaking whose predominant activity is carrying on passengers or goods for hire or reward. In the case on hand, the applicant has no such plea while applying for compensation that he was an employee under a motor transport undertaking which predominantly engaged in carrying on passengers or goods for hire or reward. In the absence of any plea in the petition seeking compensation, the applicant cannot be heard to contend that he is a motor transport worker and is entitled to get the compensation computed on the basis of the monthly wages as specified in schedule appended to Act 23 of 1971. In the said circumstances, we are of the view that neither the provisions of Act 23 of 1971 nor the schedule appended to the said Act, specifying the wages payable to different categories of motor transport workers would be relevant in the case of the applicant, seeking compensation under the Employees Compensation Act,1923. Accordingly, the said contention of the learned counsel is also found unsustainable and is repelled. 19. Even if Act 8 of 1923 does not make a provision, we have to find out a solution. As already stated, the established monthly wages is irrelevant in the matter of computation of compensation. Therefore, we feel it appropriate to rely on the provisions of the Minimum Wages Act, 1948 (for short 'Act 11 of 1948'), as guidance in M.F.A.(E.C.Act).No.125 of 2014 -:18:- the matter of adoption of monthly wages for the purpose of computation of compensation in the case on hand. Act 11 of 1948 provides for fixing minimum rates of wages in certain employments and it incorporates in it a categorization of the vehicles and the workers employed therein. In exercise of the power conferred under Section 30 of the said Act, the Central Government by Notification issued in the Gazette made rules as the Minimum Wages (Central) Rules,1950 (for short 'the Rules') for carrying out the purposes of the Act. In Chapter IV of the Rules, the mode of computation of the cash value of wages with specific reference to time of work and holidays, conditions of payment of wages and the deductions permissible from wages are provided. In group-I thereunder, a Mini Lorry, Tempo Van (for carrying goods and passengers), Triller and Light motor vehicles of Educational Institutions are incorporated. The basic pay per day in the case of a driver in vehicles of the aforesaid nature is fixed as 174/-.₹ The claim of the applicant was that he is a regular driver in a mini lorry owned by the first opposite party. The first opposite party has also not denied that. In the schedule, a category was included as running staff. Therefore, the applicant being a regular employee, his case could safely be fitted within Group I. Clause(a) specifically refers about a driver in vehicles incorporated under Group I and if reckoned with M.F.A.(E.C.Act).No.125 of 2014 -:19:- `174/- as the daily basic pay, the monthly basic pay would come to ₹4,524/-, which is exclusive of dearness allowance. Under clause C of the schedule, how the Dearness Allowance has to be reckoned is also provided. The Dearness Allowance for the month of May, 2010, being ₹1,492/-, the applicant is entitled for computation of compensation, by fixing his monthly wages as 6,016/-. The same being an amount₹ that comes in between 4,000/- and 8000/-, the caps available as₹ ₹ per the statute, prior to and after the amendment on 18.1.2010, we are inclined to fix the same as the monthly wages for the purpose of computation of compensation in the case of the applicant. With regard to the method of computation of compensation, the parties are not at dispute. When the computation is done in the manner as provided under Section 4 of Act 8 of 1923 with the monthly wages fixed as ₹6,016/- and the other factors taken by the Commissioner in the impugned order as such, the sum payable as compensation to the applicant will be 5,79,137/- [₹ ₹6016/- x 60x 172.52 x 93/100x100]. The Commissioner has already awarded as sum of 3,85,064/-. When₹ the said sum is deducted from the sum now arrived at by us, the applicant would be entitled to get ₹1,94,073/as additional compensation. The said amount will carry interest at the rate of 12% per annum from the date of the accident that is, 13.5.2010 till the date M.F.A.(E.C.Act).No.125 of 2014 -:20:- ## of realisation. In the result, this appeal is allowed. The applicant is found entitled to get an additional compensation of 1,94,073/- with interest₹ at the rate of 12% per annum from 13.5.2010 till the date of realisation. The second opposite party is directed to deposit the additional sum found payable as compensation to the applicant with the interest at the rate as aforesaid, within one month from the date of receipt of a copy of this judgment. Parties shall bear their respective costs. **==> picture [32 x 12] intentionally omitted <==** **----- Start of picture text -----**<br> Sd/-<br>**----- End of picture text -----**<br> **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS // true copy // Sd/- P.S. To Judge