JUDGMENT
L. Narasimha Reddy, J.
1. This Civil Miscellaneous Appeal, under Section 30 of the Workmen’s Compensation Act, is filed assailing the order dated 31-3-2001 in W.C.No.97 of 2000 on the file of the Commissioner, Workmen’s Compensation and the Assistant Commissioner of Labour, Hyderabad II (for short ‘the Commissioner’).
2. The first respondent raised a claim before the Commissioner alleging that her husband V. Hari was employed as a driver by the second respondent and in turn was kept at the disposal of the appellant for bringing a new car from Pune to Hyderabad. It is stated that on 27-12-1994, when he was on the way to Hyderabad, driving the car, an accident took place and he died. The age of the deceased was stated to be 30 years and his salary was shown as Rs.3,200/- per month.
3. The Commissioner issued notice to the appellant herein as the immediate employer of the deceased. On a representation being made by the appellant that the deceased was put at their service by the second respondent, the latter was impleaded. The car was covered with a transit insurance by the third respondent.
The claim was mainly resisted by the third respondent. On an appreciation of the evidence before it and by application of the provisions of the Workmen’s Compensation Act, 1923 (for short ‘the Act’), the Commissioner awarded a sum of Rs.99,712/- as compensation to the first respondent.
4. The first respondent filed cross-objections stating, inter alia, that though the deceased was being paid the wages at Rs.3,200/- per month, the Commissioner had taken the minimum wages into account, contrary to the provisions of the Act. A further contention is raised that in the formula, instead of taking the disability factor as 50%, the Commissioner, took it as 40%, resulting in diminution of the compensation.
5. Learned Counsel for the appellant submits that his client is not the direct employer of the deceased and the liability, if any, has to be that of the second respondent, the employer of the deceased or that of the third respondent who insured the vehicle. He submits that though the liability fixed by the Commissioner was joint and several, the necessity to prefer the appeal arose, because of the fact that the steps were being taken against the appellant for recovery of the same.
6. Learned Counsel for the first respondent submits that the liability fixed by the Commissioner on the appellant and respondent Nos.2 and 3 is joint and several and in that view of the matter, there was no cause of action for the appellant. It is also submitted that since the vehicle was fully covered by insurance, the appellant could have pressed its claim against third respondent. He contends that the Commissioner was not justified in adopting the minimum wages, when the salary of the deceased was not in dispute. The second respondent remained ex parte before the Commissioner as well as in this Court.
7. Learned Standing Counsel for the third respondent submits that there was no relationship of employer and employee between the deceased and the insurer of the vehicle. He submits that the insurance coverage does not extend to the death of a person, who is not regularly employed and as such the third respondent cannot be held liable to pay the compensation. Learned Counsel for the appellant and the learned counsel for third respondent opposed the cross-objections.
8. The undisputed facts are that the deceased was employed as driver by the second respondent. It is stated to be an agency to supply workmen to various individuals or establishments. The appellant is a dealer in cars. It needs the services of drivers for bringing the cars from the place of manufacture to their show room as and when orders are placed. Having regard to the adhoc nature of such demand, it used to engage the services of the drivers supplied by the second respondent. On 27-12-1994, the deceased and four other drivers were engaged by the appellant and were bringing the cars from Pune to Hyderabad. While the four drivers reached Hyderabad with their cars, the deceased and the car driven by him were missing. It is stated that the deceased was found murdered and that the car was stolen. The car is said to have been recovered after one year.
9. In the application before the Commissioner, for payment of compensation, the main dispute was as to the existence of relationship of employer and employee between the appellant and the deceased. The definition of ‘workmen’ under Section 2(n) of the Act is wide enough to take in its fold the persons who are engaged on contract basis also and those supplied by a labour contractor. At any rate, the deceased was discharging his functions as driver on behalf of the second respondent with the appellant. The fact that he died during the course of employment is not in dispute. Further, the vehicle, which was being driven by the deceased, was covered with an insurance policy taken out by the appellant. The case in fact presents a peculiar situation. The ownership of the vehicle is yet to vest in the ultimate purchaser, who is impleaded as respondent No.4. The incident took place during the transition period. Once it emerges that the deceased was engaged as a driver and that the car was covered with insurance, the benefit under the Act cannot be denied to the first respondent on the alleged uncertainties, if any, as to the inter-relation among the appellant and respondent Nos.2 and 3. In fact the ad-hoc and limited insurance taken over for that short period is meant only to cover such contingencies.
10. Coming to the quantum of compensation, the Act prescribes a formula for determination of the same by taking into account three factors namely, age, wage and percentage of loss of earning capacity. The age of the deceased was said to be 30 years. However, since the necessary proof was not placed before it, the Commissioner has taken the age to be at 35 years. This finding is not seriously challenged. So far as loss of percentage of earning capacity is concerned, Section 4 of the Act mandates that in case of death, it shall be taken as 50%. The Commissioner has taken the same at 40% obviously by mistake or due to inadvertence. Therefore, the same has to be taken as 50%.
11. Coming to the other aspect, namely, the wages, the first respondent claimed that the deceased was being paid a sum of Rs.3,200/- per month. However, she did not place any record before the Commissioner. Therefore, the Commissioner has chosen to adopt the wages stipulated under the Minimum Wages Act for that post, which stood at Rs.1,265/- per month. The object of prescription of wages under the Minimum Wages Act is to ensure that no person engaged in a particular employment is paid wages, less than those prescribed. This, however, does not mean that the minimum wages represent the actual wages to be paid. Much would depend on the nature of the work, the capacity of the employer, the risk to which the employee is exposed etc. Further, the station of working would also have its impact on the wages to be actually paid to an employee. In the instant case itself, the deceased was required to go outstation and his needs in that regard have to be taken care of. Viewed from this angle, it cannot be said that the deceased was being paid at the minimum wages alone. In the absence of any definite material touching on this aspect, this Court is of the view that ends of justice would be met, if the wages of the deceased are taken at Rs.1,500/- per month. To this extent the cross-objections need to be ordered.
12. For the foregoing reasons, the Civil Miscellaneous Appeal is dismissed with an observation that the basic liability to pay the amount shall be that of the third respondent. In case it is of the view that the insurance policy does not cover the incident, it shall be open to the third respondent to take steps against appellant or the second respondent, as are open to it in law, after meeting the liability towards the first respondent.
13. The cross-objections are allowed to the extent that the wages of the deceased shall be taken at Rs.1,500/- instead of Rs.1,265/- per month and percentage of loss of earning capacity shall be taken as 50. The Commissioner shall re-determine the compensation accordingly, and extend the same to the first respondent. The enhanced amount shall carry interest at 6% p.a. from the date of order of the Commissioner namely 31-3-2001. There shall be no order as to costs.