THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL Nos.935 of 2008 & 226 of 2010 COMMON JUDGMENT: These two appeals arise out of the order, dated 05.11.2007, in W.C.No.4 of 2006 on the file of the learned Commissioner for Workmen’s Compensation, Hyderabad, wherein the claim of the applicant for compensation, was allowed awarding a sum of Rs.2,69,892/-. Aggrieved by the award, the insurer filed C.M.A.No.935 of 2009, and seeking enhancement of compensation the applicant filed C.M.A.No.226 of 2010. 2. As both the appeals arise out of the same order, they are heard together and are being disposed of by this common order. 3. Heard both sides. Perused the record. 4. The applicant is the wife of the deceased-Srinivasulu, who was employed by A1. It is not disputed that the deceased died in a motor vehicle accident that occurred on 23.09.2005, involving the vehicle bearing No.KA-02-B- 554 belonging to the 1st respondent. According to the applicant, the defendant was employed as a cleaner whereas the insurer would contend that the deceased was not employed as a cleaner but as a Despatch Assistant and he was only a gratuitous passenger, whose risk is not covered by the policy-Ex.B1. The main contention of the insurer is that the learned Commissioner erred in fastening the joint liability on the insurer holding that the deceased was a cleaner. 5. The 1st respondent-employer has not disputed the fact that the deceased was employed as a cleaner in the said vehicle, which met with the accident, and as such the deceased died in the course of employment. First Information Report-ExA1, which was registered immediately after the accident, would show that the deceased, who was a clearer, was found dead in the cabin of the vehicle immediately after the accident. Ex.A4 is a certificate issued by the 1st respondent to the effect that the deceased was employed as a cleaner on the said vehicle with effect from 01.09.2005 while on duty as a cleaner. Ex.A9-inquest report however mentions the designation of the deceased as Despatch clerk and the same was carried in the charge sheet-Ex.A3 also. Ex.A10-panchanama for the scene of offence, which was prepared immediately after the occurrence, would show that the deceased was a cleaner and he was found dead in the cabin of the vehicle, which was completely damaged. Thus, most of the documents filed by the applicant would go to show that the deceased was employed as a cleaner in the offending vehicle by the 1st respondent. In fact, the 1st respondent-owner of the vehicle and employer of the deceased has not disputed the employment of the deceased as a cleaner and on the other hand the service certificate-Ex.A4 issued by him would establish that the deceased was employed as a cleaner. It is quite possible that the deceased was entrusted with the work of handing over the ice cream boxes at the place of delivery as he was travelling in the vehicle as a cleaner and on that circumstance, it cannot be inferred that the deceased was designated as a Despatch Assistant and he ceased to be a cleaner. When the substantial and material evidence on record shows that the deceased was employed as a cleaner, the array mentioned in the charge sheet describing him as a Despatch Assistant, does not lead to any inference that he was appointed as a Despatch Assistant, especially when there is admission on the part of the employer about the nature of employment of the deceased. The contention of the appellant-insurer that the deceased shall be treated as Despatch Assistant is therefore untenable as the deceased is found to be employed as a cleaner of the vehicle and he met with the accident and died in the course of such employment and Ex.B1-policy covering the risk of the said employee, it must be held that the learned Commissioner has rightly fastened the joint and several liability on the owner of the vehicle and the insurer for payment of the compensation. 6. Regarding the quantum of compensation, the learned Commissioner has taken the minimum wages of a cleaner at Rs.2429/- per month as per G.O.Ms.No.30, L.E.T. & F (Lab-II), dated 27.07.2000. What is prescribed in the said G.O. is only minimum wages and in the absence of any evidence showing the actual wages earned by the deceased-workman, the recourse can be taken to the said G.O. and the minimum wages prescribed therein can form the basis for assessment of the compensation. 7. In the present case, however, the applicant has produced evidence in the form of Ex.A4-service certificate, which shows that the deceased was employed on a salary of Rs.3680/-. When the evidence is available in support of the quantum of wages earned by the deceased, to adopt the minimum wages by taking recourse to the G.O.Ms.No.30 is not warranted. Rather the Commissioner ought to have taken the wages mentioned in the salary certificate-Ex.A4 as the basis for fixing the compensation. There is no dispute regarding the age of the deceased, who was 22 years, at the time of the accident, and the multiplying factor of 221.37 adopted by the Commissioner. Taking the wages of the deceased at Rs.3680/- per month into consideration and applying the said multiplying factor-221.37, the compensation payable would work out to Rs.4,07,320/-. The applicant would therefore be held entitled for a sum of Rs.4,07,320/-. Respondents in C.M.A.No.226 of 2010 shall deposit the balance amount within a period of three months from the date of receipt of a copy of this order. In the event of default in depositing the amount, the applicant would be entitled for interest at 12% from the date on which the compensation falls due. In the circumstances, the impugned award is modified accordingly. 8. In the result, C.M.A.No.935 of 2008 filed by the insurer is dismissed, and C.M.A.No.226 of 2010 filed by the applicant is allowed as stated above. _______________________ G.V.SEETHAPATHY, J 31st October, 2011 Tsy