New India Assurance Co. Ltd. v. NAZEEMA W/o THAJUDEEN and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945** **MFA (ECC) NO. 70 OF 2020** **ECC NO.371 OF 2014 OF W.C.C.,KOLLAM** **APPELLANT/3RD OPPOSITE PARTY** **THE NEW INDIA ASSURANCE CO. LTD. KOTTAYAM, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, M.G. ROAD, ERNAKULAM.** **BY ADVS. GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN** ## **RESPONDENTS/APPLICANTS 2 TO 6 & OPPOSITE PARTIES 1, 2 AND 4** - **1 NAZEEMA W/O. THAJUDEEN, SHYLAJA MANZIL, PANGOOPPARA THADOM, VILAKKUPARA P O, AYIRANALLOOR VILLAGE, PATHANAPURAM TALUK - 691312.** **2 SHYLAJA D/O. THAJUDEEN, SHYLAJA MANZIL, PANGOOPPARA THADOM, VILAKKUPARA P O, AYIRANALLOOR VILLAGE, PATHANAPURAM TALUK - 691312.** **3 SUDHEER S/O. THAJUDEEN, SHYLAJA MANZIL, PANGOOPPARA THADOM, VILAKKUPARA P O, AYIRANALLOOR VILLAGE, PATHANAPURAM TALUK - 691312.** **4 SHEEJA D/O. THAJUDEEN, SHYLAJA MANZIL, PANGOOPPARA THADOM, VILAKKUPARA P O, AYIRANALLOOR VILLAGE, PATHANAPURAM TALUK - 691312.** **5 ANEEZ S/O. THAJUDEEN, SHYLAJA MANZIL, PANGOOPPARA THADOM, VILAKKUPARA P O, AYIRANALLOOR VILLAGE, PATHANAPURAM TALUK - 691312.** _M.F.A.70 of 2020_ 2 **6 BINU K MATHEW OWNER, POABS ROCK MINES PVT.LTD, KADANDALE, KADANDALE VILLAGE, MOODHIDRI POLICE STATION LIMIT, MANGALORE TALUK, D.K. DISTRICT, KARNATAKA - 575001.** **7 C.A. ABRAHAM MANAGER, POABS ROCK MINES PVT.LTD, KADANDALE, KADANDALE VILLAGE, MOODHIDRI POLICE STATION LIMIT, MANGALORE TALUK, D.K. DISTRICT, KARNATAKA - 575001.** **8 ABRAHAM JACOB MANAGING DIRECTOR, POABS ROCK MINES PVT.LTD, KADANDALE, KADANDALE VILLAGE, MOODHIDRI POLICE STATION LIMIT, MANGALORE TALUK, D.K. DISTRICT, KARNATAKA - 575001.** **BY ADVS. SRI.B.KRISHNA MANI – R1 TO R5 SRI.N.JAMES KOSHY – R6 & R8 DHANUJA M.S** **THIS MFA (ECC) HAVING BEEN FINALLY HEARD ON 26.2.2024, THE COURT ON 18.03.2024 DELIVERED THE FOLLOWING:** _M.F.A.70 of 2020_ 3 ## **C.PRATHEEP KUMAR, J.** -------------------------------------M.F.A.(ECC).No.70 of 2020 -----------------------------------Dated : 18[th] March, 2024 ## **JUDGMENT** 1. This is an appeal filed by the 3[rd] respondent, namely the New Indian Assurance Co. Ltd, Kottayam, against the order of the Employees Compensation Commissioner in E.C.C.371/2014 dated 10.12.2019. The above claim application was filed by the legal heirs and dependents of the deceased employee towards compensation for his death that occurred in connection with an accident happened during the course of his employment with respondent No.6. The deceased was employed by the 6[th] respondent for quarrying work in their quarry situated in Karnataka State. On 8.4.2010 at about 5. pm in an incident involving explosion, he sustained injuries and succumbed to the injuries. At the time of the accident, the deceased workman was aged 32 years. The applicant claimed a compensation of Rs.9,17,325/- on the ground that the monthly wages of the deceased was Rs.9,000/- per month. Accepting the contention of the applicants that the monthly wages of the deceased employee was Rs.9,000/- per month, the compensation Commissioner awarded a total sum of Rs.8,97,300/- along with interest at the rate of 12% per annum. In addition to the same, a sum of Rs.5,000/- being funeral expenses and a sum of Rs.1,835/- being cost, were also awarded. _M.F.A.70 of 2020_ 4 2. When the matter came up for arguments, the appellant/Insurance Company has admitted the policy. They have also admitted their liability to reimburse the compensation ordered to be paid to the applicants. The only contention raised by the appellant is that the compensation fixed on the basis that the deceased workman had a monthly wages of Rs.9000/-, is not correct. On the other hand, according to the appellant, the monthly wages of the employee is to be taken as Rs.4000/- as stipulated by the statute. In support of the above argument, the learned counsel for the appellant has relied upon Ext.B1 policy also. It was contended that as per Ext.B1 policy, the monthly wages of the employees insured under the same is around Rs.4000/- per month. Therefore it was argued that in case any compensation is awarded on the basis that the monthly wages of the employee is above Rs.4000/-, the appellant has no liability to reimburse the excess amount. The learned counsel for respondents 6 to 8, who are the employers of the deceased, would contend that it is the responsibility of the appellant to pay the compensation awarded by the Commissioner and further according to them, the applicants have not succeeded in proving the actual income of the deceased employee. 3. It appears that the Commissioner has taken the monthly wages of the employee at a sum of Rs.9000/- per month, on the basis of the oral testimony given by AW1, namely, the mother of the deceased, to the effect that the employee was getting a wages of Rs.300/- per day. It is interesting to note that the above evidence of AW1 was not challenged during the cross-examination. However, _M.F.A.70 of 2020_ 5 in Ext.B2 accident intimation given by respondents 6 to 8 to the appellant the monthly wages of the deceased was shown is different sums on different months. But it is much less than Rs.9000/- as claimed by the applicant. In Ext.B1 policy also, the wages of different groups of employees are given differently. Ext.B1 does not contain the names of any employees getting wages of Rs.9000/- as claimed in the claim petition. 4. In this context it is also to be noted that before the Workmen's Compensation (Amendment) Act, 2009, which came into force on 18.1.2010, the monthly wages of an employee was statutorily restricted to Rs.4000/-. As per the above amendment, Section 4(1)(b) was inserted authorizing the Central Government to issue notification specifying the monthly wages of employees as it may consider necessary. Accordingly, the Central Government had issued a notification dated 31.5.2010 specifying the monthly wages as 8000/- for the purpose of sub-section (1) of Section 4 w.e.f. the date of publication of the notification in the official gazette. Since the above notification was published in the gazette only on 31.5.2010, there was no such income restriction during the period from 18.1.2010 to 30.5.2010. It was in the above context that the Commissioner fixed the monthly wages of the employee on the date of incident on 8.4.2010 at Rs.9000/- on the basis of the deposition of AW1. 5. It was argued on behalf of the appellant that though the Amendment Act, 2009 has omitted the Explanation II to Section 4(1) of the Act, the monthly wages of the employee cannot be taken as any amount beyond Rs.4000/- per month _M.F.A.70 of 2020_ 6 especially in view of the fact that as per the notification issued by the Government which came into force on 31.5.2010, the maximum monthly income is only Rs.8000/-. Further, relying upon Ext.B1 policy and Ext.B2 Employer's report of accident given by respondents 6 to 8 to the appellant, it was argued that the claimants are not entitled to get compensation on the basis of wages exceeding Rs.4000/- per month. 6. It was argued by the learned counsel for the appellant that the relevant date for determination of compensation payable under the Employees Compensation Act is the date of accident and not the date of award of compensation. In support of the above arguments, he has relied upon the decision of the Hon'ble Supreme Court in **K.Sivaraman and Others v. P.Sathishkumar and Another, 2020 (4) SCC 594** . It is true that the relevant date for determination of compensation payable is the date of accident and not the date of award of compensation. 7. It is true that till 18.1.2010, Explanation II to Section 4(1) of the Act restricted the monthly wages of the employees to Rs.4000/-. However, by way of the Amendment Act of 2009, the above restriction was deleted from the statute. Subsequently, only w.e.f. 31.5.2010, fresh notification was issued limiting the monthly income of the employees to Rs.8000/-. Therefore, it is to be held that during the period between 18.1.2010 and 31.5.2010 there was no such wage restriction. In the above circumstances, it is to be held that since the present incident occurred on 8.4.2010 after 18.1.2010 and before 31.5.2010, the _M.F.A.70 of 2020_ 7 compensation due to the deceased is to be computed on the basis of the actual income received by him when the untoward incident occurred. 8. In order to arrive at the correct monthly wages of the employee, the only documents available are Exts.B1 and B2. In Ext.B2 Employer's report of accident to workman and given to the appellant, the wages of the deceased was shown as Rs.4420/- in January 2010, Rs.4080/- in February 2010, Rs.4590/- in March 2010 and Rs.1190/- till the date of incident on 8.4.2010 in the month of April. With regard to the above wages of the deceased declared by the employer to the appellant, no objection is seen raised. As per Ext.B2, maximum wages of the deceased was during the month of March 2010, which is Rs.4590/-. 9. The learned counsel for the respondents would argue that the actual wages of the deceased was entered in the 'wages register' kept by respondents 6 to 8 and since it was produced before the Commissioner at the time of evidence, an adverse inference is to be drawn against respondents 6 to 8 and the appellant. In support of the above contention, he has also relied upon the decision in **Chidambaram Pillai Sivarama Pillai and Another v. Chidambaram Pillai Aundy Pillai and Others, 1950 KLT 348, 1954 KLT SN 6 (C.No.17), Skaria v. Joseph, 1967 KLT SN 12 (C.No.21)** , **Meghji Maisee Ltd. v. P.C.Oommen of Pulivelil Kizhakkethil House and Others, AIR 1963 Kerala 306** and **Hiralal and Others v. Badkulal and Others, AIR 1953 SC 225.** _M.F.A.70 of 2020_ 8 - 10.In **Chidambaram Pillai Sivarama Pillai** (supra) the suit was one for accounts and it was held that non production of the accounts by the party who is in possession of them, give rise to inference against the party withholding the same. 11. In **1954 KLT SN 6(C.No.17),** the suit was for partition and for settlement of accounts. In that case also, this Court held that in a suit for accounts, the nonproduction of the account books by the party who has custody of them justifies the presumption under Section 114(g) of the Evidence Act. - 12.In the decision in **Skaria** (supra), a wholesale merchant in food-grains filed a Suit against a retailer for the price of the food-grains. In the above case a Single Bench of this Court held that the defendant who is in possession of relevant accounts was bound to produce them even if he was not called upon to produce the same. - 13.In **Meghji Maisee Ltd.** (supra), the Suit was one for damages of wrongful dishonour of cheque, and the Bank withheld the account books and other records. In the above circumstances, this Court held that if the documents were produced it would go against the Bank and would show that the drawer had sufficient funds in his account. - 14.In **Hiralal's** case (supra) the Suit was for recovery of amounts due on the basis - of adjustment of accounts signed by the defendant. The defendant who is in possession of account books was held to be bound to produce them even if he was not called upon to do so. Relying upon the above decisions, it was argued _M.F.A.70 of 2020_ 9 that in this case also respondents 6 to 8 were bound to produce the 'wages register' and non-production of the same would attract adverse inference against them. 15.In the above referred cases, the suits were on the basis of accounts maintained between the parties and the disputed accounts were in the possession of one of the parties. The law is well settled that the party in possession of the best evidence has to produce the same. It was in the above context in the above decisions it was held that non-production of the documents in the possession of one of the parties will justify a presumption that if those documents were produced, it will be against their own case. However, in the instant case respondents 1 to 5 filed an application before the Commissioner claiming compensation for the death of an employee during the course of his employment. In order to get the compensation due to the deceased employee, the burden is on respondents 1 to 5 to prove the income of the employee. In the above factual scenario, if they are relying upon the 'wages register' maintained by respondents 6 to 8 to prove the wages, they should have taken steps to call for the above document. In the absence of any such steps from the side of respondents 1 to 5, there is no bounden duty on respondents 6 to 8 to produce the 'wages register'. In the above circumstances, for the reason that respondents 6 to 8 have not produced the 'wage register', no adverse inference can be drawn against them. 16.In the light of the income of the deceased mentioned in Ext.B2, the oral _M.F.A.70 of 2020_ 10 testimony of AW1 to the contrary cannot be relied upon. Therefore, in this case, the wages of the deceased at the time of the alleged incident, was to be treated as Rs.4590/-, the maximum wages he obtained during the period from January 2010 to April 2010. - 17.The learned counsel for the appellant would argue that as per Ext.B1, the liability of the Insurance Company is only for an income up to Rs.4000/- and if any compensation in excess of the same is awarded, it is to be paid by respondents 6 to 8. In support of the above argument, he has relied upon Ext.B1 policy issued by the appellant. It is a Group Insurance covering a total number of 22 employees, out of which the annual income of two employees is shown as Rs.4,80,000/- (at the rate of Rs.40,000/- per month). The annual income of ten employees is Rs.2,40,000/- (at the rate of Rs.2000/- per month), the annual income of five employees is Rs.1,44,000/- (at the rate of Rs.2400/per month), the annual income of three employees is 96,000/- (at the rate of Rs.2,667/- per month) and the annual income of the remaining two employees is Rs.1,20,000/- ( at the rate of Rs.5000/- per month). - 18.From the above wages of different employees mentioned in Ext.B1, it can be seen that their wages ranges from Rs.2000/- to Rs.40,000/-. In the instant case, admittedly the deceased is an employee of respondents 6 to 8. Since the wages of the deceased employee as admitted by respondents 6 to 8 in Ext.B2 is Rs.4590/- per month, and it is within the range of Rs.2000/- to Rs.40,000/covered by Ext.B1, the monthly wages of the deceased is liable to be fixed at _M.F.A.70 of 2020_ 11 Rs.4590/-. In the above circumstances, the appellant is liable to pay the compensation due to respondents 1 to 6 computing monthly wages of the deceased at Rs.4590/-. Therefore, the compensation payable to respondents 1 to 5 will come to Rs.4590 x 50 x 199.40/100 = Rs.4,57,623/- . For the said amount, the respondents 1 to 5 are entitled to get simple interest at the rate of 12% per annum as ordered by the Employees Compensation Commissioner. All other findings are sustained, as they were not disputed. 19.In the result, the appeal is allowed in part as follows :- The amount of compensation payable by the appellant to respondents 1 to 5 is fixed at Rs.4,57,623/-. All other findings in the impugned order are sustained. Sd/- ## **C.Pratheep Kumar, Judge** Mrcs/6.3.2024