Judgment:
Manjula Chellur, J.
1. This appeal arises out of an order of Commissioner for Workmen's Compensation, Davanagere, in No. LOD/SCA/CR. 171/96 dated March 31, 1998.
2. The Legal Representatives of thedeceased-Gurubasappa filed claim petitionbefore the Commissioner for Workmen'sCompensation, Davanagere, contending thaton May 11, 1996 at about 4 p.m. when thedeceased was loading the tractor he got stuckunder the mud and died due to failure ofrespiration system. Therefore, they haveclaimed a compensation of Rs. 2,50,000/- onthe ground that he was earning Rs. 1,500/- permonth and Rs. 30/- daily batta. So far as theowner is concerned, objection statement wasnot filed. The second respondent- InsuranceCompany filed objection statement.
3. On the basis of the objection, totally five issues were raised.
4. On behalf of the petitioner, P.W.1 was examined marking Ex.P1 to P6. So far as the incident resulting in the death of the deceased, the commissioner on appreciating the evidence on record has properly held that the death has occurred due to an injury in the course of and out of the employment of the deceased. So far -as the other issues are concerned, based on the material before the Commissioner, he has taken into consideration Rs. 1,500/- as salary and also Rs. 30/- as daily batta while calculating the loss of dependency. So far as the calculation, there is no dispute. So also the entitlement of compensation by the respondents herein the appellant has no dispute. Only with regard to addition of Rs. 30/- daily batta in addition to Rs. l,500/- as wages, while calculating, the present appeal is challenged.
5. The learned counsel for the appellant canvassed that a workman has to get either daily wages or monthly wages and there cannot be a case where apart from monthly salary a workman would be entitled for daily wages as well. Therefore, according to him Rs. 30/- which is paid as daily batta do not form part of wages as per Section (m) of the Workmen's Compensation Act, 1923 (the Act for short).
6. The Learned counsel for the respondents (claimants) urged that in special cases, if over time work is done, such extra amount as daily batta will be paid.
7. On ascertainment of facts from evidence placed before the Court it is seen that the claimants have not at all specified or mentioned in detail for which type of special work or over time work the deceased was paid Rs. 30/- per day. According to him, it is not daily allowance, but daily batta. Section 2(m) of the Workmen's Compensation Act reads as under:
'2(m), 'Wages', 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 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 on him by the nature of his employment.'
8. Admittedly, the deceased was a coolie engaged in the tractor of the owner for the purpose of unloading and loading and other work connected with this loading work. It is also evident from the records that at the time of loading the tractor with mud, he died. As already stated above, it is not the case of the claimants that Rs. 30/- was batta towards over time work. During the course of the arguments, the learned counsel for the respondents submitted that he used to work from 8 a.m upto 5 p.m. If that being the case, the question of over time work does not arise at all. One has to see what is the dictionary meaning of 'Dina Bhatya'. Dina means 'daily', batta means an allowance beyond the settled rate of pay given on occasions of extraordinary service, extra allowance, allowance made by a creditor to one detained by him in person, subsistence money generally to prisoners, to attending witnesses to peons executing process etc.
9. If we read the definition of wages as defined above, this daily batta falls under the category of special expenses entailed on him by the nature of his employment. First of all the petitioners have failed to establish that he was doing any extraordinary skilled work or labour for which he was paid extra payment of Rs. 30/- per day as daily wages. They are also not able to establish that he was doing over time work throughout and therefore he was getting this Rs. 30/- per day as additional wages. The very description of this Rs. 30/- per day as daily allowance (daily batta) definitely do not form part of wages as per the definition of wages under Section 2(m).
10. The next question would be whether at the appeal stage this question could be gone into as substantial question of law.
11. Section 30 of the Workmen's Compensation Act reads as under:
'Section 30: Appeals: (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:
(a) an order as awarding as compensation a lumpsum whether by way of redemption of a half monthly payment or otherwise or disallowing a claim in full or in part for a lumpsum;
(aa) an order awarding interest or penalty under Section 4-A;
(b) an order refusing to allow redemption of a half monthly payment.
(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;
(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of Sub-section (2) of Section 12; or
(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions;
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal, and in the case of an order other than order such as is referred to in Clause (b) unless the amount in dispute in the appeal is not less than three hundred rupees;
Provided further that no appeal shall lie in any case in which the parties have agreed to abide by the decision of the Commissioner, or in which the order of the Commissioner gives effect to an agreement come to by the parties;
(Provided further that no appeal by an employer under Clause (a) shall lie unless the memorandum of appeal is accompanied by a certificate by the Commissioner to the effect that the appellant has deposited with him the amount payable under the order appealed against.)
(2) The period of limitation for an appeal under this Section shall be sixty days.
(3) The provisions of Section 5 of the Limitation Act, 1963 (36 of 1963) shall be applicable to appeals under this Section'.
12. Admittedly, it is not a question ofappreciating facts available. But it is a questionof law i.e., whether the amount ofcompensations arrived at by the Commissioneris in accordance with law or not is the question.If the Commissioner under law was notpermitted to take into consideration the dailybatta as wages and if such amount is taken intoconsideration while arriving at lumpsumcompensation payable to the L.Rs of deceaseddefinitely it would lead to question of law.Therefore, the Commissioner herein haswrongly taken into calculation the daily battawhich he is otherwise prohibited from takinginto account while calculating thecompensation. Therefore, the appeal ismaintainable.
13. It is also pertinent to mention here that though the issue of establishing that the deceased was earning Rs. 30/- per day was on the claimants, except the oral statement of the wife of the deceased no other material is produced. The best witness would have been the owner of the tractor under whom the deceased was employed. He has not been examined. The employer though made him a party has not participated in the proceedings. Under such circumstances, the claimants ought to have established the fact that the deceased was earning Rs. 30/- per day as additional daily wages apart from his monthly salary of Rs. 1,500/-.
14. In view of the above discussion and reasoning, the quantum of compensation to be paid to the deceased would be as under:
Rs. 1,500/- (monthly wages) x 50/100 = 1,56,000/-. A sum of Rs. 1000/- is also payable under Section 4(4) of the Act towards the funeral expenses.
15. In all the claimants-respondents would be entitled to only Rs. 1,57,000/- as against 2,07,980/- as compensation. The appellant is directed to deposit this amount together with interest at 12% p.a. as per Section 30 of the Act from June 11, 1996 till the date of deposit. So far as the penalty imposed by the Commissioner on the owner of the vehicle, there is no need to interfere with the same except for the fact that the penalty amount would be 10% of award amount - 3 in the appeal. After payment of compensation together with interest and cost, if any amount is left in the deposit, the same shall be paid to the appellant.
16. The appeal is accordingly disposed of.