1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 427 OF 2010 Sumanbai W/o Bansi Sanap & Oths. .... APPELLANTS V E R S U S Ananta S/o Namdev Sanap & Oths. .... RESPONDENTS ----------------------------------------------------------------------------------------------------------------- Mr. S.G.Chapalgaonkar, Advocate for the appellant. ---------------------------------------------------------------------------------------------------------------- CORAM : S.V. GANGAPURWALA, J. DATE : 12/10/2010 ORAL ORDER : 1. The present appellant is the original claimant. The appellant had filed claim petition before the Commissioner for Workmen’s Compensation, Beed [ For short, ‘ the Commissioner ’ ] under the provisions of the Workmen’s Compensation Act. 2. The case of the appellant was that deceased Bansi, who was the husband of the appellant no. 1 and father of appellant nos. 2 to 4 met with an accident. The said accident took place during the course and out of an employment with respondent no. 1. Respondent no. 2 is the insurer. The appellants claimed compensation of Rs. 3,00,000/-. The Commissioner vide its Judgment and order dated 04/11/2009 partly allowed the said claim petition and 2 granted compensation of Rs. 1,17,253/-. 3. The appellants being aggrieved by non grant of the total compensation, has approached this Court. 4. Mr. Chapalgaonkar, the learned counsel for the appellant has submitted that the deceased Bansi was working as a cleaner on the vehicle owned by respondent no. 1. The same is proved. It has also been brought on record that deceased Bansi was drawing salary of Rs. 4,000/- per month and bhatta of Rs. 50/- per day. The deceased Bansi was aged 48 years at the time of his death. All these facts have been proved, but the Commissioner has not taken into consideration these facts and has considered the income of the deceased as Rs. 50/- per day. The learned counsel further submitted that even minimum wages for an unskilled labour is Rs. 102.50 per day. So even if the notional income is considered, that would be about Rs. 30,000/- per annum. 5. He has further submitted that as per the Post Mortem report, the age of the deceased was 48/49 years and this being the beneficial legislation, the benefit should be given to the appellant. The age of the deceased should be considered as 48 years. 6. Initially, this Court had issued notices to the respondents vide order dated 02/03/2010 along with intimation that the Appeal may be heard finally at the admission stage. In spite of the service of the said notice, none appeared for 3 the respondents. Thereafter vide Order dated 14/09/2010, again the notices for final disposal of the Appeal were issued to the respondents. The said notice is also served upon the respondents as per the record. Still the respondents have preferred to remain absent. 7. With the assistance of the learned counsel for the appellant, I have gone through the Judgment delivered by both the Courts below. The learned counsel for the appellant made available the relevant part of the record for my perusal. There is an oral evidence on record about the income of the deceased, but, it is not supported by any documentary evidence. In light of the same, it would be appropriate to consider the notional income. It is a proved fact that the deceased was working as cleaner with respondent no. 1. Though the actual proof of the salary drawn is not on record, in such circumstances, notional income can be considered which would be about Rs. 3,000/- per month. As such, there would not be any impediment to consider the income of the deceased as Rs. 3,000/- per month. 8. As per the Post Mortem report, the age of the deceased is mentioned as 48/49 years. The Commissioner has taken the age of the deceased as 49 years, which according to me is the appropriate. The same does not require any interference. So, taking into account the income of the deceased as Rs. 3,000/- per month and the age of the deceased as 49 years, in such circumstances, the relevant factor that would be applied is 156.47. Taking into account the disability, 50 % of the income, that would be Rs. 1500/- per month multiplied by relevant 4 factor i.e. 156.47, the appellants would be entitled for compensation of Rs. 2,34,705/-. 9. In light of the above, the order of the Commissioner is modified. It is held that the appellant/applicant is entitled for compensation of Rs. 2,34,705/- instead of Rs. 1,17,353/- as awarded by the Commissioner. Respondent nos. 1 and 2 shall jointly and severally pay said amount of Rs. 2,34,705/- to the appellant. Respondent no. 1 shall pay 50 % of the amount as penalty and interest @ 9 % per annum from the date of application till realization of the said amount. It is informed that the appellants have withdrawn the amount of Rs. 1,17,353/-. The amount withdrawn would be adjusted from the total claim amount. 10. The Appeal is accordingly disposed off. However, there shall be no order as to costs. [ S.V. GANGAPURWALA ] JUDGE knp/FA 427.10