Abhay Gohil, J.
1. This is claimants appeal for enhancement of compensation under Section 173 of the Motor Vehicles Act, 1988 against the award dated 26-7-2001 passed by Special Judge and Additional Motor Accident Claims Tribunal, Gwalior in Claim Case No. 1/2000.
2. Brief facts of the case are that deceased Pannalal, aged about 26 years, who was a healthy man, was working as a driver on Ambassador Car No. MP07-W-1067 owned by one Ravindra Kumar. On 26-2-1999 deceased Pannalal was coming to Gwalior from District Kakroli and he was driving the said car at his own side. The moment the car reached near Police Station Charbhuja, one Truck No. RJ27/G-1673, which was being driven by respondent No. 1 rashly and negligently, dashed the Ambassador Car. As a result of this accident Pannalal died on spot. The matter was reported to Police Station Charbhuja, crime was registered and after investigation charge-sheet was filed.
3. Appellants those who are widow, three sons and one daughter of the deceased, have filed claim petition under Section 163 of the Motor Vehicles Act, in which it was contended that deceased was working as driver, getting salary of Rs. 2000/- per month and daily allowance (Bhatta) at the rate of Rs. 50/- per day, as such he was getting total salary of Rs. 3500/- per month; they were all dependent on the income of the deceased and claimed compensation of Rs. 20.00 lacs. It was further pleaded that the accident took place because of rash and negligent driving of the aforesaid truck and appellant No. 1 Smt. Shakuntala, who is the wife of the deceased, became widow in young age.
4. During trial the respondents No. 1 and 2 driver and owner of the said truck, were absent and they were ex parte. Respondent No. 3 Insurance company filed written statement and denied the allegation that the salary of the deceased was Rs. 3500/- per month including the Bhatta (daily allowance). It was further stated that the accident took place because of negligence of the driver of the Ambassador car and the truck driver was not having valid driving licence and he was driving the vehicle without licence, therefore, insurance company is not liable for compensation as the truck was being driven contrary to the terms and conditions of the policy, and therefore, prayed for dismissal of the claim petition.
5. During trial the issue were framed and evidence of the parties was recorded. The tribunal recorded a finding that the accident took place because of rash and negligent driving by the truck driver. It dashed the Ambassador car and as a result of injuries sustained by driver of the car he died on spot. The Tribunal further found that there is no evidence that the accident took place because of rash and negligent driving of the drivers of both the vehicles. There is also no evidence on record that the truck driver was driving the truck contrary to the terms and conditions of the insurance policy. The claimants have not produced any documentary evidence on record about salary and Bhatta. Therefore, Tribunal held that in the absence of any documentary proof about the salary of Rs. 2000/- plus daily allowance of Rs. 50/- per day, the salary of the deceased-driver of the Ambassador car cannot be considered as Rs. 3500/- per month but held that he was earning Rs. 1000/- per month, and considered total income of the deceased including allowance as Rs. 15,000/- per annum as per second schedule and assessed the dependency of Rs. 10,000/- per annum. The age of the deceased was considered as 26 years as per post-mortem report and it was found that he was between the age group of 25-30 and for the aforesaid age group applied the multiplier of 18 and awarded total compensation of Rs. 1,80,000/-. The Tribunal further awarded a sum of Rs. 8000/- in the head of loss of consortium, love and affection, Rs. 2000/-for funeral expenses and Rs. 5000/- for loss of consortium to the wife of the deceased and thus awarded total amount of compensation of Rs. 1,95,000/-.
6. We have heard the learned Counsel for the parties, considered the submissions and perused the evidence on record and finding of the learned Tribunal.
7. The submission of the learned Counsel for the appellants is that the learned Tribunal has wrongly discarded the evidence of Ravindar Kumar, who is owner of the Ambassador car. He has clearly stated in his statement that the deceased was driver on his car and he was getting salary of Rs. 2000/- per month plus Rs. 50/- per day as Bhatta (daily allowance) and thus was getting total amount of Rs. 3500/- per month as wages and the Tribunal has determined his income as Rs. 15000/- per annum on the basis of second schedule. In the second schedule notional income of Rs. 15000/- has been determined for non-earning person but the income of the earning person has to be determined on the basis of the evidence on record and not on the basis of the principle of notional income. He further argued that the daily allowance which was being paid to the deceased, is a part of the wages and allowance was not paid only for taking food on outside duty but it was paid as an allowance in addition to the monthly salary.
8. In reply, learned Counsel for the respondents submitted that the allowance is not a part of wages and that is only being paid for taking food when a person is on duty outside the city, therefore, the allowance cannot be considered as a part of wages and supported the award.
9. In fact, the Tribunal has not recorded any finding as to whether Bhatta (daily allowance) is a part of 'wages' or not. The Tribunal has also not assigned any reason for discarding the salary of the deceased as Rs. 2000/- or Rs. 50/- as per day allowance. It is true that as per second schedule the income of Rs. 15000/- per annum is being considered for the non-earning persons and not for the earning persons, thus, the Tribunal has wrongly assessed the income of the deceased as Rs. 15000/- per annum, as the deceased was working as driver and getting salary and daily allowance, therefore, to that extent the finding of the Tribunal cannot be said to be legal.
10. Two questions in this appeal are involved, firstly what was the income of the deceased, whether the claimants were successful in proving that the salary of the deceased was Rs. 2000/- per month along with Rs. 50/- per day as Bhatta (allowance) and thus his monthly wages was Rs. 3500/-. Secondly, whether the Bhatta (allowance) which is being paid to the drivers is a part of the salary and wages or not?
11. To determine the question whether the daily allowance (Bhatta) is a part of wages for computing the compensation under the Motoi Vehides Act and ultimately to determine the question of wages of a driver, we have to consider the evidence and if it has come in the evidence that he was also getting Rs. 50/- per day as daily allowance, whether the same can form part of wages. The term 'wages' has been defined in many Central Acts, such as, under the Payment of Wages Act, the Minimum Wages Act, 1948, Industrial Disputes Act, 1947 and under Workmen's Compensation Act, 1923 which are as under:
The Payment of Wages Act. 1936:
Section 2(vi) - 'Wages' means all remuneration (whether by way of salary, allowance, or otherwise) expressed in terms of money or capable of being so expressed which would, if the terms of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment of of work done in such employment, and includes-
(a) & (b) *** *** ***(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);
(d) & (e) *** *** ***Minimum Wages Act. 1948:
Section 2(h) - 'Wages' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment (and includes house rent allowance), but does not include-
(i) the value of
(a) *** *** ***(b) any other amenity or any service excluded by general or Government;
(ii) *** *** ***(iii) any travelling allowance or the value of any travelling concession;
(iv) any sum paid to the person employed to defray special expenses entailed on him by the of his employment; or
(v) *** *** ***Industrial Disputes Act, 1947:
(rr) 'Wages' means all remuneration capable of being expressed in terms of money, which would if the terms of employment, expressed or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes-
(i) such allowance (including dearness allowance) as the workman is for the time being entitled to;
(ii) *** *** ***(iii) any travelling concession;
(iv) *** *** ***The Workmen's Compensation Act. 1923:
(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 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 on him by the nature of his employment.
From bare reading of the definition of 'Wages' under Minimum Wages Act, 1948, Industrial Disputes Act, 1947 and The Workmen's Compensation Act, 1923 it is amply clear that the 'Wages' means all remunerations whether by way of salary, allowance or otherwise expressed in terms of money or capable of being so expressed, payable to a person employed in respect of his employment or of work done in such employment and includes any additional remuneration, any travelling allowance or the value of any travelling concession or any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment, shall form part of the Wages. These definitions are quite exhaustive and it prima facie appears that any amount paid to the driver either as additional remuneration payable in terms of employment or any travelling allowance or any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment, would be included in the definition of 'Wages'. Therefore, any Bhatta or daily allowance is paid to the driver under any special contract as additional remuneration or as daily allowance may be considered as part of the wages but if any sum is paid for defraying any expenses towards food as and when the driver will go outside of the city then it may not form part of the wages. For that the claimant has to prove that the amount of daily Bhatta is paid as additional remuneration or as travelling allowance and it may depend from case to case and on the nature of the vehicle as well as the nature of duties and if it is found proved that the Bhatta is paid as additional remuneration under the terms of contract for the purposes mentioned in the definition of 'wages' then as per the evidence on record the Court may include the aforesaid Bhatta as part of wages.
12. To determine the aforesaid question various decisions were cited by the learned Counsel for the parties. Karnataka High Court in case of New India Assurance Co. Ltd. Gulbarga and Anr. v. Subhas 2004 (3) TAC 706 : 2005 AIR Kant HCR 972, after considering the 'various judgments Hon'ble Justice R.V. Raveendran (as he then was) has held that subject to evidence to the contrary in any given case, any allowance paid as bhatta to a driver or cleaner of a lorry/vehicle will have to be treated as benefit forming part of 'wages' under the Act. Reliance was also placed on the Division Bench decision of Karnataka High Court in case of Saundatti S.B. v. Biyamma 1967 II L.L.J 130, in which Division Bench has held that 'bhatta' paid to a cleaner was a benefit received by him forming part of wages.
13. In the case of United India Fire and General Insurance Co. Limited v. Vadivatha 1982 TAC 43 Madras, the Madras High Court held that in absence of clear evidence to show that Bhatta paid represented travelling allowance or value of any travelling concession, there was no justification for excluding the Bhatta, from wages.
14. Division Bench of Kerala High Court in case of Ouseph Mathai v. Mathew 1981 ACJ 8 : 1981 TAC 166 held as under:
That a part of the remuneration due to a worker was being paid daily and the remaining on monthly basis will not make either of the payments any-the-less wages so long as it is a benefit capable of being estimated in money. The question in each case is whether the workman concerned can claim the amount as of right for the services rendered by him. If he can do so and if it does not fall under the excluded category mentioned in Section 2(i)(m), there is no scope for dispute that it is wages which should be taken into account in deciding the quantum of compensation due to the workman.
15. Orissa High Court in the case of Divisional Manager, Oriental Insurance Co. Limited v. Giriwal Transport Corporation 1994 Lab IC 2655 (Orissa), has also considered and taken a view that Bhatta paid to a workman forming a part of wages as defined under Section 2(1)(m) of the Act. Andhra Pradesh High Court in case of New India Assurance Co. Limited v. Kotam Appa Rao 1995 II L.L.J. 436 : 1995 Lab. IC 1087 has also taken the similar view. In Hindustan Aeronautics Limited v. Bone John and Anr. 1971 (1) Mys. L.J. 299 : 1971 ACJ 266 (Mys.), Division Benchy of Mysore High Court held that outstation allowance is the benefit which the employee is entitled to get for working outstation and has nothing to do with nature of employment. It was specifically considered that even if any allowance is paid in consideration of the work done by the workman, even if it is paid daily to facilitate the employee to meet his daily needs, it will be a part of the 'wage'. Similarly, if any allowance is paid to an employee by the employer to meet any special needs or circumstances relating to his employment, that will also be part of the 'wages'.
16. Division Bench of Himachal Pradesh High Court in the case of Giano Devi and Ors. v. Gian Singh and Anr. , in which the conductor was getting salary plus Rs. 400/- per month as diet money, has held that the diet money has to be accounted for while assessing income of the deceased in the definition of 'wages' as other sums which can be measured in terms of money forming part of wages.
17. Division Bench of Madhya Pradesh High Court in the case of Basant Kaur and Ors. v. Chatarpal Singh and Ors. , considered diet money paid to the driver as part of salary. Similarly Division Bench of this Court, Gwalior Bench, in the case of Smt. Usha Kushwah and Ors. v. Tukaram alias Tukman Singh and Ors. Misc. Appeal No. 28 of 2001, decided on 28-2-2007 held that 'Bhatta' can be treated as part of wages.
18. In the case of Rajasthan State Road Transport Corporation v. Anita and Ors. : 2001(3)MPLJ147 Gwalior Bench (DB) of this Court considered Rs. 20/- per day as diet money paid to the driver. The amount of Rs. 20/- paid towards 'Khana Khurak' was also considered while considering the wages of the deceased. In case of Prem Bai v. Ramesh and Ors. , Division Bench of M.P. High Court again considered the amount of per day allowance of Rs. 30/- to the truck driver. The amount of allowance of Rs. 30/- was considered to be spending on himself and the total amount of salary was considered as the amount towards dependency. In case of United India Insurance Co. Ltd. v. Asha Devi and Ors. the daily allowance was also considered while assessing the amount of compensation.
19. In case of Nasimbanu and Ors. v. Ramjibhai Bachubhai Ahir and Ors. : (2005)2GLR1476 , the Division Bench of Gujarat High Court held that daily allowance paid to a tanker driver is a part of wages.
20. Considering the position of law as enunciated in the above decisions, we have no hesitation to hold that the 'Bhatta'- daily allowance paid to the driver either as additional remuneration under the contract or daily allowance or travelling allowance, and also considering the definition of 'wages' in the Workmen Compensation's Act of 1923, according to which '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 a contribution paid by the employer of a workman or a sum paid to a workman to cover any special expenses entailed on him by the nature of his employment, and according to this definition, which includes any privilege or benefit, this definition is both inclusive and exclusive. Inclusion is wider and exclusion is limited to certain specified categories and all other categories which are not so excluded within the definition of 'wages'. Since daily Bhatta does not fall under the items excluded then it will form part of 'wages'. Therefore, it can be safely held that not only the actual wages but the other sums which can be measured in terms of money also form part of wages.
21. In the case in hand the deceased was a Taxi driver getting salary of Rs. 2000/-per month and daily allowance of Rs. 50/-per day. Shakuntala (AW1), wife of the deceased, has deposed that her husband was working as driver on the car of Ravlndra Kumar and was getting Rs. 2000/- as salary and Rs. 50/- as daily Bhatta. Ravindra Kumar (AW2) was also examined and he has also deposed that he was paying Rs. 2000/-as salary and Rs. 50/- as daily Bhatta. Therefore, from the aforesaid evidence it is found proved that the driver was also getting Rs. 50/- as Bhatta. Nothing has come on record that it was being paid either as a food allowance while on duty outside of the city or it was not part of wages. Therefore, we consider that the Bhatta paid to the deceased was part of wages if not paid only for food expenses while on duty outside of the city. In fact Bhatta or allowance paid to driver or cleaner should be regular and not conditional and there should be clear evidence of this effect on record. The Tribunal discarded the aforesaid evidence on the ground that Ravindra Kumar has not produced any books of account, therefore, only on the basis of oral evidence salary of Rs. 2000/- and Bhatta Rs. 50/- cannot be considered as salary of deceased and considered the salary as Rs. 15000/- per year on the basis of notional income mentioned in Second Schedule but has ignored this fact that the principle of notional income is applicable in a case where the person is a non-earning member but certainly in a case where the person is earning member the principle of notional income mentioned in the Schedule cannot be the basis for determining the compensation. Therefore, we consider that the monthly wages of the deceased was Rs. 2000/- and Rs. 1500/- towards the daily allowance at the rate of Rs. 50/- per day. We consider that he must be spending daily allowance towards his personal expenses. Therefore, the amount of Rs. 2000/- per month can be considered as amount towards dependency and Rs. 24000/- per annum. The age of the deceased was 26 years and between the age-group of 25 to 30, multiplier of 18 is applicable and on application of this multiplier the amount of compensation comes to (24000 x 18) = 4,32,000/-. The Tribunal has allowed a sum of Rs. 5000/- to the wife of the deceased in the head of consortium and Rs. 8000/- to the children/respondents Nos. 2 to 5 @ Rs. 2000/- each, in the head of loss of love and affection and Rs. 2000/- for funeral expenses. In additional to this total amount of Rs. 15000/-, we further award a sum of Rs. 3000/- in the said heads, which appears to be just and proper. Thus, we award a total sum of (432000 + 18000) + Rs. 450000/- (Rupees Four lacs Fifty Thousand only). On the enhanced amount the claimants would be entitled for interest @ 6% per annum from the date of filing of this appeal. We direct that the enhanced amount be deposited in a nationalised bank in the name of claimants for a period of six years and the claimants would be entitled for monthly interest thereon.
22. Thus, this appeal is allowed as indicated above, Counsel's fee Rs. 1000/.