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  REPORTABLE    IN THE SUPREME COURT OF INDIA    CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.869 OF 2016 (Arising out of S.L.P. (C) No. 1903 of 2015)

JAYA BISWAL & ORS.           ………APPELLANTS Vs.

BRANCH MANAGER, IFFCO TOKIO GENERAL  INSURANCE COMPANY LTD. & ANR.        ………RESPONDENTS

     J U D G M E N T

V. GOPALA GOWDA, J.

Leave granted.

2.The present appeal arises out of the impugned judgment  

and order dated 13.08.2014 passed in F.A.O. No. 472 of  

2013 by the High Court of Orissa at Cuttack, wherein  

the  learned  single  Judge  reduced  the  amount  of  

compensation awarded to the appellants by the learned  

Commissioner  for  Employees’  Compensation  from  

Rs.10,75,253/-  to  Rs.6,00,000/-  and  also  waived  the  

award of 50% penalty with interest.

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3.The brief facts of the case required to appreciate the  

rival  legal  contentions  advanced  on  behalf  of  the  

parties are stated here under:

The elder son of appellant Nos. 1 and 2 worked as a  

truck  driver  with  one  Bikram  Keshari  Patnaik  

(respondent no. 2 herein). On 19.07.2011, he met with  

an accident while on his way to deliver wheat bags in  

the  truck  from  Berhampur,  Orissa  to  Paralakhemundi,  

Andhra  Pradesh.  He  sustained  severe  injuries  on  the  

back of his head and died on the spot. The cleaner of  

the truck, who was present at the time of the accident,  

gave information regarding the accident to the Mandasa  

Police Station, Srikakulam, whose personnel reached the  

spot and conducted the inquest, prepared the panchnama  

and sent the body of the deceased for post mortem. The  

cleaner  also  informed  the  father  of  the  deceased  

(Appellant  No.1  herein),  who  made  arrangements  for  

taking the dead body of his son back to the native  

village for cremation. On 03.11.2011, the appellants,  

being the father, mother and younger brother of the  

deceased, filed claim petition W.C. Case No. 61 of 2011

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before  the  Court  of  the  Commissioner  for  Workmen’s  

Compensation, Berhampur, Ganjam District. The claim of  

the appellants was that the deceased was aged around 26  

years at the time of death and had died while he was in  

and during the course of employment of respondent no. 2  

herein. They claimed that he was getting monthly wages  

at Rs.4,000/- per month, daily  bhatta  (allowance) at  

Rs.200/-  which  comes  to  Rs.6,000/-  per  month,  along  

with additional trip benefit amounting to Rs.3,000/-,  

the total amounting to Rs.13,000/- per month. On this  

basis, they claimed a lump sum of Rs.18,00,000/- as  

pecuniary damages towards loss of past and future wages  

and loss of earning. They claimed additional amount of  

Rs.20,000/-  towards  funeral  expenses,  Rs.30,000/-  

towards  mental  agony,  physical  shock  and  pain,  and  

Rs.50,000/-  towards  expectation  of  life  and  

Rs.1,00,000/- towards loss of estate, inconvenience and  

hardships caused to the family members of the deceased  

on account of the death of deceased.

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4.In response, the owner of the truck, respondent no.2  

herein  filed  a  Written  Statement  and  denied  his  

liability.  He  claimed  that  he  was  not  liable  to  

compensate the deceased as he had died on the spot due  

to his own negligence, as he had tried to enter the  

vehicle while it was in motion. Respondent no. 2 also  

contended that in any case he is not liable to pay the  

amount as claimed by the appellants. He submitted in  

the Written Statement that he has been paying only Rs.  

100/- per day as wages, and Rs. 50/- per day as bhatta.  

Further, he had already given financial assistance to  

the  father  of  the  deceased  for  the  cremation.  The  

learned Employees Compensation - cum- Assistant Labour  

Commissioner considered the above aspect of the matter  

at  length  and  arrived  at  the  conclusion  that  the  

deceased was working in the employment of Respondent  

no.2 at the time of his death and that he had lost his  

life in an accident caused during and in the course of  

his  employment  with  Respondent  no.2.  The  learned  

Commissioner relied upon the testimony of the witnesses

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to construct the following chain of events leading up  

to the accident:

“The deceased was working as a driver in truck  No. OR 15J-1047 owned by the O.P.I……On 19-07- 2011 at about 4.30 A.M., the deceased received  personal  back  head  injury  near  Sandhigam  village by vehicular accident arising out of  and in course of his employment as a driver of  the truck No. OR 15J-1047 which was loaded with  wheat bags. He along with the cleaner Sarada  Prasana Patnaik loaded the said wheat bags on  18-07-2011 at about 11.30 P.M. at godown. On  the way, they stopped and kept the vehicle and  took the rest and slept there on 18-07-2011.  Another truck bearing No. OR 07B-8791 which was  also followed with the offending vehicle had  also halted and stopped there along with them.  They all had taken rest and slept there and got  up  early  morning  at  about  4.30  A.M.  on  19.07.2011  and  started  to  proceed  to  Paralakhemundi for unloading the goods. While  to  proceed,  the  deceased  had  started  the  vehicle but the vehicle did not start. Hence,  the deceased and the cleaner got down from the  vehicle and checked the battery box and removed  the wooden log piece kept for obstructing the  right wheel of the said truck. After removal of  the wooden log piece, the vehicle moved to run  down. The deceased saw that the vehicle was  moving ahead, he immediately climbed into the  vehicle through the iron stepping of the truck,  but unfortunately, he fell down from the truck  and  sustained  severe  and  grievous  bleeding  injuries on the back side of the head and died  at the spot. The vehicle proceeded few distance  on the public road and capsized in the field.  Thereafter, he and the cleaner of the vehicle  saw  the  condition  of  the  deceased  and  had  consulted with the village Revenue Officer of

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Sandigam  village  and  told  the  fact.  They  immediately reported the matter to the police,  Mandasa Police Station and informed the same to  the  O.P.I  as  well  as  to  the  father  of  the  deceased.”

5.Further, Respondent no.2 had also admitted before the  

learned Commissioner that the death of the deceased had  

occurred due to an accident arising out of and during  

the course of the employment for which a compromise was  

sought  to  be  reached  by  Respondent  no.2  with  the  

appellants,  to  the  amount  of  Rs.3,50,000/-.  

Accordingly,  the  learned  Commissioner  came  to  the  

conclusion that the deceased was an ‘employee’ within  

the meaning of the Employee’s Compensation Act, 1923  

(hereinafter referred to as the “E.C. Act”) and had  

died in an accident arising out of and in the course of  

his  employment  under  Respondent  no.2.  The  learned  

Commissioner,  relying  on  the  date  of  birth  of  the  

deceased as 01.07.1984, as mentioned in the driver’s  

license  and  Transfer  Certificate,  came  to  the  

conclusion that the age of the deceased was 27 years at  

the  time  of  the  accident.  On  the  question  of  the  

monthly wages being earned by the deceased at the time

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of his death, the learned Commissioner concluded that  

the contentions advanced by Respondent no.2 that he was  

being paid wages of Rs. 100/- per day and bhatta of Rs.  

50/- per day cannot be believed. The vehicle in which  

the accident had occurred possessed a National Route  

Permit, and the deceased often drove the vehicle to  

destinations outside the state. He was also a highly  

skilled workman. In the light of the said fact stated  

by the appellants, the wages of Rs.4,000/- per month  

and  bhatta of  Rs.200/-  per  day  and  trip  charges  of  

Rs.3,000/- per month (i.e.Rs.13,000/- per month) seemed  

genuine.  Accordingly,  the  learned  Commissioner  

calculated the compensation as under:

Rs.8,000/- (wage limited to) x 50% x 213.57 (27 years  

of age factor)

= Rs.8,54,280/-

The learned Commissioner further awarded an interest @  

12%  per  annum  to  the  appellants  from  the  date  of  

accident,  as  well  as  Rs.20,000/-  as  the  cost  of  

proceedings,  the  total  amount  of  compensation  thus  

coming to Rs. 10, 75, 253/-.

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6.Aggrieved by the same, the Insurance Company filed an  

appeal under Section 30 of the E.C. Act before the High  

Court of Orissa at Cuttack. The learned single Judge  

allowed the appeal and set aside the award passed by  

the learned Commissioner. The learned single Judge of  

the High Court held as under:

“Considering  the  submissions  made  by  the  learned counsel for the parties and keeping in  view the findings of the Commissioner as given  in  the  impugned  award  with  regard  to  the  quantum of compensation amount awarded and the  basis on which the same has been arrived at, I  feel, the interest of justice would be best  served, if the awarded compensation amount of  Rs.10,75,253/-  is  modified  and  reduced  to  Rs.6,00,000/- However the award of 50% penalty  with interest @12% per annum is not proper and  justified and the same is accordingly waived.  Accordingly,  the  claimants  are  entitled  to  modified compensation amount of Rs.6,00,000/-  on which no penalty or interest is payable. The  impugned award is modified to the said extent  only.”

7.The present appeal has been filed by the appellants  

challenging the correctness of impugned judgment and  

order passed by the High Court.

8.Mr.  Alakh  Alok  Srivastava,  the  learned  counsel  

appearing on behalf of the appellants contends that the

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High Court committed a grave error in entertaining an  

appeal under Section 30(1) of the E.C. Act, which reads  

as under:

“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 lump  sum whether by way of redemption of a half- monthly payment or otherwise or disallowing a  claim in full or in part for a lump sum;”

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The proviso to the Section reads as under:

“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 an order such is referred to  in clause (b) unless the amount in dispute in  the  appeal  is  not  less  than  three  hundred  rupees…”

    (emphasis laid by this Court)

9.The learned counsel contends that the High Court could  

not have entertained the appeal under Section 30(1) of  

the  E.C.  Act  in  the  light  of  the  fact  that  no  

substantial  question of law was involved in the        

appeal.  The  learned  counsel  places  reliance  on  a  

decision of this Court in the case of T.S. Shylaja v.

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Oriental Insurance Co. & Anr.1, wherein this Court held  

that the High Court committed an error in entertaining  

an  appeal  against  the  decision  of  the  Compensation  

Commissioner  without  answering  or  framing  any  

substantial question of law. In that case, this Court  

held as under:

“10. The only reason which the High Court has  given  to  upset  the  above  finding  of  the  Commissioner is that the Commissioner could not  blindly  accept  the  oral  evidence  without  analysing the documentary evidence on record.  We  fail  to  appreciate  as  to  what  was  the  documentary evidence which the High Court had  failed  to  appreciate  and  what  was  the  contradiction, if any, between such documents  and the version given by the witnesses examined  before the Commissioner. The High Court could  not have, without adverting to the documents  vaguely  referred  to  by  it  have  upset  the  finding  of  fact  which  the  Commissioner  was  entitled  to  record.  Suffice  it  to  say  that  apart  from  appreciation  of  evidence  adduced  before  the  Commissioner  the  High  Court  has  neither referred to nor determined any question  of law much less a substantial question of law  existence whereof was a condition precedent for  the  maintainability  of  any  appeal  under  Section 30. Inasmuch as the High court remained  oblivious of the basic requirement of law for  the maintainability of an appeal before it and  inasmuch as it treated the appeal to be one on  facts it committed an error which needs to be  corrected.”

1 (2014) 2 SCC 587

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10.The  learned  counsel  further  places  reliance  on  the  

decision  of  this  Court  in  the  case  of  National  

Insurance Co. Ltd.  v. Mastan & Anr.2,  wherein it was  

held that an appeal under Section 30 of the E.C. Act  

would be maintainable subject to the limitations placed  

under Section 30 itself.

11.The  learned  counsel  further  contends  that  the  High  

Court patently erred in waiving off the 50% penalty  

alongwith the 12% interest payable by Respondent No.1  

in case of default without assigning the cogent reason.  

The learned counsel places reliance on a Four Judge  

Bench decision of this Court in the case of  Pratap  

Narain  Singh  Deo  v. Srinivas  Sabata3,  wherein  this  

Court held that the amount of compensation is payable  

from the date of accident and not from the date of  

award. The same was reiterated by a Division Bench of  

this Court in the case of  Oriental Insurance Company  

2 (2006) 2 SCC 641 3 (1976) 1 SCC 289

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Ltd.v. Siby George & Ors.4, wherein after referring to  

several decisions of the Court, it was held that:

“In the light of the decisions in Pratap Narain  Singh Deo and Valsala K., it is not open to  contend that the payment of compensation would  fall due only after the Commissioner's order or  with reference to the date on which the claim  application is made.”

12.The  learned  counsel  further  contends  that  the  High  

Court  committed  an  error  in  reducing  the  amount  of  

compensation  awarded  by  the  learned  Commissioner  

without assigning any cogent reasons. Further, there  

was  no  discussion  in  the  impugned  judgment  as  to  

whether there was any connection between the death of  

the deceased and the use of the offending vehicle. The  

learned counsel places reliance on the decision of this  

Court in the case of Harijan Mangri Siddakka & Ors. v.  

Oriental Insurance Co. Ltd. & Anr.5, wherein it was held  

as under:

“We  find  that  there  is  practically  no  discussion  on  the  factual  scenario  as  to  whether there was any connection between the  death  and  the  use  of  the  vehicle.  It  would  depend upon the factual scenario in each case  

4 (2012) 12 SCC 540 5 (2008) 16 SCC 115

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and there cannot be any strait jacket formula  to be applied.”

13.The learned counsel further contends that the deceased  

had  died  as  a  result  of  an  injury  sustained  in  an  

accident  arising  out  of  and  in  the  course  of  

employment. He placed reliance on the decision of this  

Court in Mackinnon Mackenzie & Co. (P) Ltd. v. Ibrahim  

Mohd. Issak6, wherein it was held as under:

“To come within the Act the injury by accident  must arise both out of and in the course of  employment. The words "in the course of the  employment" mean "in the course of the work  which the workman is employed to do and which  is incidental to it." The words "arising out of  employment" are understood to mean that during  the  course  of  the  employment,  injury  has  resulted  from  some  risk  incidental  to  the  duties of the service, when, unless engaged in  the duty owing to the master, it is reasonable  to believe the workman would not otherwise have  suffered. In  other  words,  there  must  be  a  causal  relationship  between  the  accident  and  the  employment.  The  expression  "arising  out  of  employment" is again not confined to the mere  nature  of  the  employment.  The  expression  applies to employment as such-- to its nature,  its  conditions,  its  obligations  and  its  incidents. If by reason of any of those factors  the  workman  is  brought  within  the  zone  of  special danger, the injury would be one which  arises  "out  of  employment."  To  put  it  

6 (1969) 2 SCC 607

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differently, if the accident had occurred or  account of a risk which is an incident of the  employment,  the  claim  for  compensation  must  succeed,  unless  of  course  the  workman  has  exposed himself to an added peril by his own  imprudent act.”

14. The learned counsel contends that the judgment of  

the High Court thus being wholly and patently erroneous  

is liable to be set aside and the order of award of  

compensation  passed  by  the  learned  Commissioner  be  

restored.

15.On the other hand, Mr. K.K. Bhat, the learned counsel  

appearing on behalf of the respondent Insurance Company  

contends that the High Court has been compassionate and  

reasonable in allowing even the amount of compensation  

it did award, considering the fact situation of the  

case on hand. In fact, the appellants are not entitled  

to  any  compensation  whatsoever  when  the  deceased  

himself was solely negligent and responsible for the  

accident  which  resulted  in  his  death.  The  learned  

counsel  places  reliance  on  the  three  judge  Bench

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decision of this Court in the case of  Khenyei  v. New  

India Assurance Co. Ltd.7, wherein it was held as under:

“In  the  case  of  contributory  negligence,  a  person  who  has  himself  contributed  to  the  extent  cannot  claim  compensation  for  the  injuries sustained by him in the accident to  the extent of his own negligence……”

16.The learned counsel further contends that the Insurance  

Company is not liable to pay the penalty in any case.  

He places reliance on the decision of this Court in the  

case of Ved Prakash v. Premi Devi & Ors.8, wherein this  

Court held as under:

“In other words the insurance company will be  liable to meet the claim for compensation along  with  interest  as  imposed  on  the  insured  employer by  the Workmen's  Commissioner under  the Compensation Act on the conjoint operation  of Section 3 and Section 4-A Sub-section (3)(a)  of the Compensation Act. So far as additional  amount  of  compensation  by  way  of  penalty  imposed  on  the  insured  employer  by  the  Workmen's Commissioner under Section 4A(3)(b)  is concerned,  however, the  insurance company  would not remain liable to reimburse the said  claim  and  it  would  be  the  liability  of  the  insured employer alone.”

17. We  have  heard  the  learned  counsel  appearing  on  

behalf of both the parties. We are unable to agree with  7 (2015) 9 SCC 273 8 (1997) 8 SCC 1

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the  contentions  advanced  by  the  learned  counsel  

appearing  on  behalf  of  the  respondent  Insurance  

Company.

18. The E.C. Act is a welfare legislation enacted to  

secure compensation to the poor workmen who suffer from  

injuries at their place of work. This becomes clear  

from a perusal of the preamble of the Act which reads  

as under:

“An Act to provide for the payment by certain  classes  of  employers  to  their  workmen  of  compensation for injury by accident.”

This  further  becomes  clear  from  a  perusal  of  the  

Statement of Objects and Reasons, which reads as under:

“……The growing complexity of industry in this  country, with the increasing use of machinery  and consequent danger to workmen, alongwith the  comparative poverty of the workmen themselves,  renders  it  advisable  that  they  should  be  protected, as far as possible, from hardship  arising from accidents. An additional advantage of legislation of this  type is that by increasing the importance for  the  employer  of  adequate  safety  devices,  it  reduces the number of accidents to workmen in a  manner  that  cannot  be  achieved  by  official  inspection. Further, the encouragement given to  employers to provide adequate medical treatment  for their workmen should mitigate the effects  to such accidents as do occur. The benefits so

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conferred on the workman added to the increased  sense of security which he will enjoy, should  render industrial life more attractive and thus  increase the available supply of labour. At the  same  time,  a  corresponding  increase  in  the  efficiency  of  the  average  workman  may  be  expected.”                    (emphasis laid by this Court)

Thus,  the  E.C.  Act  is  a  social  welfare  legislation  

meant to benefit the workers and their dependents  in  

case of death of workman due to accident caused during  

and in the course of employment should be construed as  

such.  

Section  3  of  the  E.C.  Act  provides  for  employer’s  

liability for compensation and reads as:

“  3  (1) If  personal  injury  is  caused  to  a  workman by accident arising out of and in the  course of his employment his employer shall be  liable to pay compensation in accordance with  the provisions of this Chapter”                    (emphasis laid by this Court)

19.The liability of the employer, thus, arises, when the  

workman sustains injuries in an accident which arises  

out of and in the course of his employment. In the case  

of  Regional  Director,  E.S.I.  Corporation  &  Anr.  v.

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Francis De Costa & Anr.9,  a Three Judge Bench of this  

Court held as under:

“In  the  case  of  Dover  Navigation  Company  Limited v. Isabella Craig 1940 A.C. 190, it was  observed by Lord Wright that- Nothing  could  be  simpler  than  the  words  "arising  out  of  and  in  the  course  of  the  employment." It is clear that there are two  conditions to be fulfilled. What arises "in the  course of the employment is to be distinguished  from what arises "out of the employment." The  former  words  relate  to  time  conditioned  by  reference to the man's service, the latter to  causality. Not every accident which occurs to a  man  during  the  time  when  he  is  on  his  employment,  that  is  directly  or  indirectly  engaged on what he is employed to do, gives a  claim to compensation unless it also arises out  of the employment. Hence the section imports a  distinction  which  it  does  not  define.  The  language is simple and unqualified. Although  the  facts  of  this  case  are  quite  dissimilar, the principles laid down in this  case, are instructive and should be borne in  mind. In order to succeed, it has to be proved  by the employee that (1) there was an accident,  (2) the accident had a causal connection with  the employment and (3) the accident must have  been suffered in course of employment.”

20. The  learned  counsel  appearing  on  behalf  of  the  

appellants  has  also  rightly  placed  reliance  on  the  

decision  of  this  Court  in  the  case  of  Mackinnon  

9 (1996) 6 SCC 1

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Mackenzie  (supra). In the facts of the instant case,  

the deceased was on his way to deliver goods during the  

course of employment when he met with the accident. The  

act  to  get  back  onto  the  moving  truck  was  just  an  

attempt to regain control of the truck, which given the  

situation, any reasonable person would have tried to do  

so. The accident, thus, fairly and squarely arose out  

of and in the course of his employment.

21. The next contention which needs to be dispelled is  

that  the  appellants  are  not  entitled  to  any  

compensation because the deceased died as a result of  

his own negligence. We are unable to agree with the  

same. Section 3 of the E.C. Act does not create any  

exception of the kind, which permits the employer to  

avoid his liability if there was negligence on part of  

the workman. The reliance placed on the decisions of  

this Court on Contributory negligence like the Three  

Judge Bench decision in the case of Mastaan (supra) is  

wholly  misplaced  as  the  same  have  been  passed  in  

relation to the Motor Vehicles Act, 1988, and have no

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bearing on the facts of the case on hand. The E.C. Act  

does not envisage a situation where the compensation  

payable  to  an  injured  or  deceased  workman  can  be  

reduced on account of contributory negligence. It has  

been held by various High Courts that mere negligence  

does  not  disentitle  a  workman  to  compensation.  Lord  

Atkin in the case of  Harris  v. Assosciated Portland  

Cement Manufacturers Ltd.10observed as under:

"Once you have found the work which he is  seeking to be within his employment the  question of negligence, great or small,  is irrelevant and no amount of negligence  in doing an employment job can change the  workman's  action  into  a  non-employment  job ... In my opinion if a workman is  doing an act which is within the scope of  his  employment  in  a  way  which  is  negligent in any degree and is injured by  a risk incurred only by that way of doing  it he is entitled to compensation."

The above reasoning has been subsequently adopted by  

several High Courts. In the case of  Janaki Ammal  v.  

Divisional Engineer11,the High Court of Madras held as  

under:

“Men  who  are  employed  to  work  in  10 1939 AC 71 11  (1956) 2 LLJ 233

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factories  and  elsewhere  are  human  beings, not machines. They are subject  to human imperfections. No man can be  expected to work without ever allowing  his  attention  to  wander,  without  ever  making a mistake, or slip, without at  some  period  in  his  career  being  momentarily  careless.  Imperfections  of  this  and  the  like  nature  form  the  ordinary hazards of employment and bring  a case of this kind within the meaning  of the Act.”

While no negligence on part of the deceased has been  

made out from the facts of the instant case as he was  

merely trying his best to stop the truck from moving  

unmanned, even if there were negligence on his part, it  

would  not  disentitle  his  dependents  from  claiming  

compensation under the Act.

22. Thus,  what  becomes  clear  from  the  preceding  

discussion is that the deceased died in an accident  

which arose in and during the course of employment. The  

learned counsel for the appellants has rightly placed  

reliance on the decision of this Court in the case of  

T.S. Shylaja  (supra), wherein referring to proviso of  

Section 30 of the E.C. Act, this Court held as under:

“What is important is that in terms of

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the  1st  proviso,  no  appeal  is  maintainable against any order passed  by  the  Commissioner  unless  a  substantial  question  of  law  is  involved.  This  necessarily  implies  that  the  High  Court  would  in  the  ordinary  course  formulate  such  a  question or at least address the same  in  the  judgment  especially  when  the  High Court takes a view contrary to  the view taken by the Commissioner.”

In the light of the well reasoned and elaborate order  

of award of compensation, the High Court could not have  

reduced the compensation amount by more than half by  

merely  mentioning  that  it  is  in  the  ‘interest  of  

justice’.  It was upon the High Court to explain how  

exactly depriving the poor appellants, who have already  

lost  their  elder  son,  of  the  rightful  compensation  

would serve the ends of justice.

23. Since neither of the parties produced any document  

on  record  to  prove  the  exact  amount  of  wages  being  

earned by the deceased at the time of the accident, to  

arrive at the amount of wages, the learned Commissioner  

took into consideration the fact that the deceased was  

a highly skilled workman and would often be required to

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undertake long journeys outside the state in the line  

of  duty,  especially  considering  the  fact  that  the  

vehicle  in  question  had  a  registered  National  Route  

Permit.  The  wages  of  the  deceased  were  accepted  as  

Rs.4,000/- per month + daily  bhatta  of Rs.6,000/- per  

month, which amounts to a total of Rs.10,000/-. The  

High Court did not give any reason on which basis it  

interfered  with  the  finding  recorded  by  the  

Commissioner on the aspect of monthly wages earned by  

the  deceased.  The  impugned  judgment  does  not  even  

mention what according to the High Court, the wages of  

the deceased were at the time of the accident. Such an  

unnecessary interference on part of the High Court was  

absolutely  uncalled  for,  especially  in  light  of  the  

fact that the appellant Nos.1 and 2 are old and have  

lost their elder son and they have become destitutes.  

Further, under the Payment of Wages Act, 1936, the onus  

is on the employer to maintain the register and records  

of wages, Section 13A of which reads as under:

“13-A.   Maintenance  of  registers  and  records-

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(1)  Every  employer  shall  maintain  such  registers  and  records  giving  such  particulars of persons employed by him,  the  work  performed  by  them,  the  wages  paid  to  them,  the  deductions  made  from  their wages, the receipts given by them  and  such  other  particulars  and  in  such  form as may be prescribed. (2) Every register and record required to  be maintained under this section shall,  for  the  purposes  of  this  Act,  be  preserved  for  a  period  of  three  years  after  the  date  of  the  last  entry  made  therein.”

From a perusal of the aforementioned section it becomes  

clear that the onus to maintain the wage roll was on  

the  employer,  i.e.  Respondent  No.2.  Since  in  the  

instant case, the employer has failed in his duty to  

maintain the proper records of wages of the deceased,  

the appellants cannot be made to suffer for it.

24. In view of the foregoing, the judgment and order of  

the High Court suffers from gross infirmity as it has  

been passed not only in ignorance of the decisions of  

this Court referred to supra, but also the provisions  

of the E.C. Act and therefore, the same is liable to be  

set aside and accordingly set aside.

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25. The monthly wage of the deceased arrived at by the  

learned Commissioner was Rs.10,000/-. The date of birth  

of  the  deceased  according  to  the  Driver’s  License  

produced on record is 01.07.1984. The date of death of  

the deceased is 19.07.2011. Thus, according to Schedule  

IV of the E.C. Act, the ‘completed years of age on the  

last birthday of the employee immediately preceding the  

date on which the compensation fell due’, is 27 years,  

the factor for which is 213.57. Hence, the amount of  

compensation payable to the appellants is calculated as  

under:

Rs.10,000/- x 50% x Rs.213.57 = Rs.10,67,850/-.

Funeral expenses to the tune of Rs.25,000/- are also  

awarded.

    The total amount of compensation payable thus  

comes to Rs.10,92,850/-.

26. Further, an interest at the rate of 12% per annum  

from the date of accident, that is 19.07.2011, is also  

payable  to  the  appellants  over  the  above  awarded  

amount. In light of the unnecessary litigation and the

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hardship of the appellants in spending litigation to  get  the  compensation  which  was  rightly  due  to  them  

under the Act, we deem it fit to award the appellants  

costs as Rs. 25,000/-.

27.  Appeal  is  accordingly  allowed.  The  respondent-

Insurance  Company  is  directed  to  deposit  the  amount  

within  six  weeks  from  today  with  the  Employees  

Compensation Commissioner. On such deposit, he shall  

disperse the same to the appellants.  

                            …………………………………………………………J.                             [V. GOPALA GOWDA]         

                    …………………………………………………………J.                             [UDAY UMESH LALIT] New Delhi, February 4, 2016

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ITEM NO.1A-For Judgment      COURT NO.9            SECTION XV                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Civil Appeal  No(s).869/2016 @ SLP(C) No(s).  1903/2015 JAYA BISWAL & ORS.                                 Appellant(s)                                 VERSUS BRANCH MANAGER, IFFCO TOKIO GENERAL INSURANCE  COMPANY LTD. & ANR.   Respondent(s) Date : 04/02/2016 This appeal was called on for pronouncement of  JUDGMENT today. For Appellant(s)                      Mr. Kedar Nath Tripathy,Adv.                       For Respondent(s)                      Mr. Ranjan Kumar Pandey,Adv.                           

Hon'ble Mr. Justice V.Gopala Gowda pronounced  the judgment of the Bench comprising His Lordship  and Hon'ble Mr. Justice Uday Umesh Lalit.

Leave granted. The  amount  of  compensation  payable  to  the  

appellants is calculated as under: Rs.10,000/- x 50% x Rs.213.57 = Rs.10,67,850/-.

Funeral expenses to the tune of Rs.25,000/-  are also awarded.      The total amount of compensation payable thus  comes to Rs.10,92,850/-.

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Further, an interest at the rate of 12% per  annum  from  the  date  of  accident,  that  is  19.07.2011, is also payable to the appellants over  the  above  awarded  amount.  In  light  of  the  unnecessary  litigation  and  the  hardship  of  the  appellants  in  spending  litigation  to  get  the  compensation which was rightly due to them under  the Act, we deem it fit to award the appellants  costs as Rs. 25,000/-.   The respondent-Insurance Company is directed to  deposit  the  amount  within  six  weeks  from  today  with the Employees Compensation Commissioner. On  such deposit, he shall disperse the same to the  appellants.  

The appeal is allowed in terms of the signed  Reportable Judgment.

      (VINOD KUMAR) COURT MASTER

(CHANDER BALA) COURT MASTER

 (Signed Reportable judgment is placed on the file)