ORDER
1. The appellant in this appeal is the second respondent in W.C. No. 69 of 1987 on the file of the Deputy Commissioner of Labour, Madurai. The first respondent in this appeal is the petitioner and the second respondent in this appeal is the first respondent in the above referred to proceedings. By judgment dated 11.11.1988, in W.C.No.69 of 1987, the Authority under the Workmen’s Compensation Act, 1923 (hereinafter referred to as ‘the Act’) passed an award in favour of the petitioner before it for a sum of Rs. 85,428 with a direction to deposit that money within a specified date, failing which the amount awarded would carry interest. The correctness of this award is questioned in this appeal by the second respondent before the lower Court.
2. I heard Mr. K. Ranganathan, learned counsel appearing for the appellant and Mr. N.E.A. Dhinesh learned counsel appearing for the first respondent in the appeal. For the purpose of convenience, in this judgment, the parties are referred to in the same rank in which they are described in the original proceedings before the lower Authority. The short and interesting point that arises for consideration in this appeal is whether in computing the ‘wages’ of the petitioner, the sum representing the batta paid to him should taken into account or not. According to the learned counsel for the appellant, the amount paid towards batta shall not be taken into account in computing the “wages” while it is the contention of the learned counsel for the first respondent that it should be taken into account. In the light of the submissions made by the learned Counsel on either side on the point referred to above, I perused the order under challenge as well as the records including the evidence carefully.
3. A few facts touching upon the issue have to be necessarily stated to appreciate the point in controversy and they are as hereunder:
In this application for compensation, the petitioner had stated as follows:
“The petitioner is a workman employed by Opposite Party No.1; on 15.2.1987, he received personal injuries by accident arising out of and in the course of his employment; The petitioner was working as a driver;
……………………………………………………………………………………………
…………………………………………………………………………………. The
monthly wages of the petitioner including the batta was Rs. 800″.
The objection filed by the Opposite Party No.1 is as follows:
“The salary paid to the petitioner is only Rs. 350; The allegation as if the salary and the batta paid to the applicant amounts to Rs. 800 is absolutely incorrect; The average earnings including the batta must be proved by the applicant; The batta has been paid whenever he was on duty”.
The answer statement filed by the Opposite Party No.2 disclosed the following:
“The averments in the application regarding the age and the monthly “wages” of the applicant are all not admitted; ………………………………………
The averments regarding the monthly wages will have to be established by the applicant and the Opposite Party No.1 by producing the “Wages records and vouchers”.
4. In the context of the pleadings extracted above on the question of “wages” earned by the petitioner, the petitioner has examined himself as P.W.1 besides examining the doctor P.W.2 who treated him for the injuries sustained. He had also marked Ex.A- 1 the Salary certificate. None was examined on the side of the Opposite Parties and no exhibits also were marked on their side. Hereunder I extract the relevant portion of the evidence of P.W.1.
“My monthly salary is Rs. 350; batta would be Rs. 500 to Rs. 550; I had claimed an average of Rs. 800 per month; The Opposite Party No.1 had given me a certificate stating that I was drawing a sum of Rs. 850 per month as salary”. (evidence in chief)
The Opposite Party No.1 had not cross-examined this witness at all. However the Opposite Party No.2 had cross-examined this witness, and the relevant portion of the evidence in his cross examination is as hereunder:
“There are two drivers for the lorry; That lorry goes to Periyakulam and Tiruchi regularly; For one week continuously it will go; Next week, the other driver will go; batta would be paid on the basis of collection; Batta was paid to meet the expenditure arising out of my employment”.
Ex.A-given by the Opposite Party No.1 reads as follows:
“Driver T. Pichumani (petitioner) was employed in my lorry from August 1986 to February, 1987; he was earning a sum of Rs. 350 as salary per month plus a sum of Rs. 500 as batta per month”.
5. On these pleadings and the oral evidence placed before the Authority under the Act, it is contended by the learned counsel for the appellant that the payment of a sum of Rs. 500 towards batta cannot be taken into account while calculating the wages. Thus the learned counsel for the appellant would argue that the Authority under the Act had committed an error in determining the wages of the petitioner as Rs. 800. It is further argued by the learned counsel for the appellant that the sum of Rs. 500 paid towards batta in the face of the evidence in cross of P.W. 1, as referred to above, stands excluded by the last of the exclusion clauses contained in the definition of “wages” as found in Section 2(1)(m) of the Act. On the other hand, the learned counsel for the first respondent has argued that except the solitary statement of P.W.1 in his cross examination as referred to above, there are no other materials on record to bring the payment of Rs. 500 towards batta within may one of the exclusion clauses contained in Section 2(1)(m) of the Act. According to the learned counsel for the first respondent, unless the evidence regarding the nature of employment and the expenses that are likely to arise out of such nature of
employment is brought out, mere answering in the affirmative to a question put by the Opposite Party No.2 as referred to above cannot be of any use at all. The learned counsel for the first respondent also has argued that none of the Opposite Parties had taken any plea in their answer statement contending that the batta paid comes within any one of the four exclusion clauses contained in Section 2(1)(m) of the Act. Unless there are pleadings to that effect, any amount of evidence brought before the Court cannot be looked into.
6. Section 2(1)(m) of the Workmen’s Compensation Act, 1923 is extracted hereunder:
“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.”
Under this definition any privilege or benefit which is capable of being estimated in money, other than the one falling under the four excluded contingencies are included within the term “wages”.
7. It is now endeavour to determine whether the sum of Rs. 500 paid to the petitioner before the lower Authority could be taken into account or not in determining his “wages”. As rightly pointed out by the learned counsel for the first respondent there is no averment in the pleading of either the first Opposite Party or the second Opposite Party as to why the sum of money paid as “batta” should be excluded while computing the “wages” of the workmen. Therefore in the absence of any pleading to this effect, the question whether it is open to either of the Opposite Parties to cross examine the workman on that aspect falls for consideration. Normally, the rule is in the absence of any pleading, any amount of oral evidence will not be of any use at all since such oral evidence without pleading is likely to take the other party affected by such oral evidence by surprise. It is pertinent to note here that the best person who could speak about the wages earned by the petitioner besides himself would be only his employer viz., the Opposite Party No.I. It is seen from the answer statement of the Opposite Party No.I that no where he had taken a stand that the “batta” paid would not be taken into account while computing the “wages”. The question is whether the workman would earn that money representing the “batta” as a matter of right or it is only a unilateral decision of the employer which could be varied or withdrawn at any time. The plea of the Opposite Party No. 1 in this context is that whenever a workman was on duty, he was paid the “batta”. Therefore, to my mind, it appears that, after careful consideration especially in the context of the pleadings and the evidence placed before the Court on behalf of the petitioner, the workman can claim this money i.e., “batta” as a matter of right. Why I am stressing upon the need for a pleading on this aspect is that if a contention has been raised by the Opposite Party for excluding the “batta paid while computing the “wages” then the workman would have been put on guard as to what case he has to fact
and what proof he must let in Ex.A-1 is the salary certificate and the truth or otherwise of the same has not been attacked in any manner while the workman was in the box as P.W.1, through whom it was marked as well at the instance of the Opposite Part No. 2. This Ex.A-1 also shows besides the monthly salary of Rs. 350 the workman was also getting a sum of Rs. 500 per month as “batta”. It is no doubt true that the workman as P.W.1 in his cross examination had stated “batta would be paid on the basis of collection; batta was paid to meet the expenditure arising out of his employment”. Therefore, there are two versions in the evidence in the cross examination of P.W.1 viz., (1) the collection “batta” and (2) “batta paid to meet the expenditure arising out of employment. If the sum paid to the workman besides the monthly salary is a collection batta, then it partakes character of an incentive. While considering the provisions of the Employees State Insurance Act, the Honourable Supreme Court of India in a judgment reported in Harihar Folyfibres v. Regional Director E.S.I. Corporation, and Regl. Director E.S.I. Corporation v. Batta Shoe Co., 1985 (51) FLR 616 held that the incentive bonus would be taken into account while determining the “wages”. The exclusion clauses contained in Section 2(22) of the Employees State Insurance Act is more or less similar to the exclusion clauses contained in Section 2(1)(m) of the Workmen’s Compensation Act. However the learned counsel for the appellant is not taking advantage of this piece of the evidence in cross examination of P.W.1 and that the payment of “batta” is towards collection batta. However, the learned counsel heavily relies upon the next line in the evidence in the cross examination of P.W.1 to the effect that the sum was paid to meet the expenditure arising out of his employment.
8. To what extent the learned counsel is right in contending that the said payment stands excluded from “wages” according to the last exclusion clause in Section 2(1)(m) of the Workmen’s Compensation Act remains to be considered. That exclusion clause uses the work “entail” which means according to the concise Oxford Dictionary (9th Edition) as follows: “necessitate of involve unavoidably”. Not only that this work “entail” is preceded by the words “special expenses”. Therefore, it is clear that the expenses which are necessitated or unavoidably involved shall not be mere expenses but special expenses. “Special expenses” is definitely different from ordinary expenses. The meaning of the word “special” in the Concise Oxford Dictionary (9th Edition) suitable to the situation is “exceptional; out of the ordinary; peculiar; specific; not general”. Therefore, to my mind, it appears that to bring a payment under the last of the exclusion clauses contained in Section 2(1)(m) of the workmen’s Compensation Act, it must be necessarily proved what the nature of the employment of the workman is and which entails on him special expenses. Taking a meal, coffee or tea once or twice enroute while on duty cannot be definitely brought under the words “special expenses” since spending money under those heads mentioned above is part and parcel of routine life. In other words, on a careful consideration of the last of the exclusion clauses referred to above, I am of the considered opinion that
the special expenses entailed on a workman by the nature of his employment would only relate to expenses met by the workman for the benefit and for and on behalf of the employer himself. To bring a payment made by the employer to the workman under the fourth exclusion clause contained in Section 2(1)(m) of the Workmen’s Compensation Act, there must be necessarily pleading and evidence in that regard. In other words, dehors the nature of employment and for want of details regarding special expenses entailed on a workman by the nature of his employment, it is not possible to come to a decision at all on that aspect. It is not as though these two aspects viz., the nature of employment and special expenses entailed on him by the nature of his employment cannot be proved by evidence. In my opinion, the special expenses referred to in the last of the exclusion clauses contained in Section 2(1)(m) of the Act cannot be related to any expenses of the workman himself, but it can be only related to a “special expense” incurred or likely to be incurred in the nature of the employment for and on behalf of the employer by the workman. The contingency of a driver in a lorry reaching the place of destination returning to the home station within a couple of hours is not uncommon and therefore there would be no need at all for him to spend on a meal or so but even then he will be entitled to the “batta” can it be said that that payment made to him in that contingency shall not be taken into account in computing the “wages”. For instance, if a driver takes batta on the date of his duty and does not spend it at all for one reason or the other, can it be said that the employer is entitled to reimbursement. The answer is “no”. In other words, the payment paid to meet the special expenses, in the last of the exclusion clauses contained in Section 2(1)(m) of the Act is nothing but a reimbursement of the expenses either already incurred or proposed to be incurred by the driver for and on behalf of his employer.
9. In this context, the learned counsel on either side brought to my notice certain judgments in support of their respective cases. Mr. K. Ranganathan, learned Counsel for the appellant has cited the following two judgments reported in Gopal Singh v. Nilamani Pradhan, 1988 ACJ 244 and National Insurance Co. Ltd. v. Mohd. Mujataba Khan, 1993 A.C.J. 542, the former one by the High Court of Orissa at Cuttack and the latter one by the Andhra Pradesh High Court. In both cases, the definition of “wages” under Section 2(1)(m) of the Workmen’s Compensation Act came up for consideration. In the first case the appeal was by the workman who was aggrieved by the fact that the sum of Rs. 20 per day paid to him towards allowance on days of his duty was not taken into account while computing the “wages”. The learned Judge without assigning any reason has held in para 5 of that judgment that that amount represents the amount to cover any special expenses incurred by the workman due to the nature of his employment. Following this judgment, the learned Judge in the subsequent case also held so. With great respect to the Judges who decided those cases, I am not inclined to agree with the learned Judges on the line of thinking as indicated
above, since there appears to be no discussion at all as to why this amount should be excluded while the “wages” is being computed.
10. Mr. N.E.A. Dhinesh learned counsel appearing for the first respondent has brought to my notice some judgments out of which, I refer to only a few of them which are relevant according to me. Those judgments are as follows:
A learned single Judge of this Court in the judgment reported in United India Fire And General Insurance Co. v. Vadivatha, 1982 T.A.C. 43 had occasion to consider the scope of Section 2(1)(m) of the Workmen’s Compensation Act. In that case, the workman contended that besides a sum of Rs. 77 as monthly wages, he was also getting a sum of Rs. 100 to Rs. 120 as “batta”: The Insurance Company contended that the batta should be excluded from ‘wages’. In this context, the learned Single Judge held as follows:
“There is no evidence to show that the sum of Rs. 100 paid as batta was really paid in lieu of travelling allowance or it represents the value of any travelling concession. In the absence of clear evidence to show that the batta paid to the deceased represent the travelling allowance or represents the value of any travelling concession, there is no justification for excluding from wages of the deceased the batta paid to him. So, the contention of the teamed counsel for the appellant that the batta paid should be excluded while computing the wages of the deceased cannot be accepted”.
The importance of necessary evidence to be placed before the Court for excluding any sum from the for definition “wages” seems to be uppermost in the mind of the learned Single Judge in this case. I have already stated in this judgment that there is total want of pleading and evidence on this aspect from the side of the Opposite Parties. In Ouseph Mathai v. Mathew, 1981 A.C.J. 8 two learned Judges of the Kerala High Court while dealing with Section 2(1)(m) of the Workmen’s Compensation Act held that the “batta” shall be taken into account while computing the “wages”. The workman in that case was a conductor in a bus and the monthly wages was stated to be Rs. 120 which was split into Rs. 30 per month and the daily batta Rs. 3. However, the Authority under the Act excluded the daily “batta” while computing the “wages”. In this context, the learned Judges stated as follows:
“The term ‘wages’ as defined in section 2(1)(m) of the Workmen’s Compensation Act 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. There is no case for the respondent that the daily batta of Rs. 3 was being paid by way of travelling allowance or travelling concession or that it was paid to cover any special expenses entailed on the deceased by the nature of his employment. It would appear from the evidence that the remuneration for the work of the deceased employee was so fixed, that a portion of it was to be paid on a monthly basis and the other portion was to be paid daily, probably to facilitate
the employee to meet his daily needs. 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(1)(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”.
Lastly, the learned counsel for the first respondent also relied upon the
judgment of the High Court of Mysore reported in Hindustan Aeronautics
Ltd. v. Bone Jan, 1971 A.C.J. 266 decided by two learned Judges to sustain
the arguments that when there is any doubt while interpreting Section 2(1)(m)
of the Workmen’s Compensation Act in computing the “wages”, the benefit of
the same should be given to the workman. In this context, what is said by the
two learned Judges in the above-mentioned Case is worth extracting and it is
extracted as hereunder:
“The Workmen’s Compensation Act is a piece of ameliorative legislation and even if there is any doubt it must be resolved in favour of the workman rather than in favour of the employer”.
11. On a consideration of the facts available in this case, and in the light of the arguments advanced by the learned Counsel on either side, I am not inclined to accept the only submission made by the learned counsel for the appellant that the “batta” paid to the workman in this case shall not be taken into account while computing the wages as defined under Section 2(1)(m) of the Act. Accordingly to me, the “batta” paid to the workman in this case is part and parcel of his “wages” though paid in two different modes viz., a part as one time payment at the end of the month and the other paid in daily instalments whenever he was on duty. From the nature of the claim in this case, it appears to me that the workman can claim that amount as a matter of right and he was not at the sweet Will and disposal of his employer viz., the first Opposite Party to collect the same. In the circumstances, I am of the opinion that the Authority under the Workmen’s Compensation Act had not committed any illegality in taking into account the sum paid to the workman as “batta” in arriving at the “wages” earned by the Workman per month. Accordingly, the Civil Miscellaneous Appeal fails as it lacks merit and it is dismissed without costs.