-"^ HIGH COURT OF CHHATTISG^UI AT BILASPUR Misc.Appeal No. 584/2008 SB: Hon^ble Shri Justice R.L. Jhaawar APPELLANTS Madkaoii Ayatu aiid others, Versus RESPONDBNTS Manirain yadav aad ofhers, ORDER Post for order on| 4.2,2011 Sd/- R.L. Jhanwar Judge ^ .2.2011 "\ -k^-;'y<K^ ^ss^ ^^s^y I HIGH COURT OF CHHATT8SGARH : BiLASPUR SINGLE BENCH: HON'BLE SHRI R.LJHANWAR. J. JVIisc. Aopeai fC) No. 584 of 2008 APPELLANTS CLAIMANTS RESPONDENTS ^ 1. Madkami Ayatu, S/o late Shri Bhursu, aged about 45 years, 2. Smf. Budhri, W/o Madkami Ayatu, aged about 4? years. 3. Kumari Mangio, D/o Madkami Ayatu, aged about 15 years, Minor through Madkami Ayatu, S/o Late Shri Bhursu, Natural Guardian, All caste Madiya, R/o Darapara, Kapanar, Post Pakhnar, Dist. Bastar(C.G.) VERSUS 1) Maniram Yadav, S/o Shri Jugumram Yadav, Aged about 23 years, R/o Rautpara, Kapanar, Post Pakhnar, Distt. Bastar(C.G.) 2) Manshya, S/o Pran, aged about 45 years, R/o Rautpara,' Kapanar, Post Pakhnar, District Bastar (C.G.) 3) The United India Insurance Company Ltd., Through the Branch Manager, In front of Anupama Talkies, Jagdalpur, DistrictBastar(C.G.) APPEAL UNDER SECTION 30 OF THE WORKIVIEN1S COMPENSATION ACT. 1923 Appearance: Shri Aiok Dewangan, counsel for the appe!!ants. None for respondents No.1 & 2. Shri Dashrath Gupta, counsel for respondent No.3 ORDER (Passed on ^ .02.2011) Aggrieved by the order dated 14.02.2008 passed by the Commrssioner for Workmen's Compensation, Labour Court, Jagdaipur (henceforth 'leamed Commissioner') in case No. 56//WC Act/2006/FataJ whereby the iearned Commissioner has awarded a sum of Rs.2,44,024/- as compensation in favour of the claimants, the ciaimants preferred this appeai for enhancement. '%»^'^ :-^^^^^- 2. As against the compensation of Rs.3,25,365/- claimed by the claimants i.e. unfortunate parents and sister of the deceased Madkami Kuma by filing claim petition under Section 10 of the Workmen's Compensation Act (henceforth 'the Act') for the death of Madkami Kuma in the motor accident on 14.01.2006, the learned Commissioner has awarded sum of Rs.2,44,024/- as compensation along with interest at 6% per annum from the date of filing of claim petition till realization of amount. The !eamed Commissioner has further directed respondent No.2 i.e. owner of the vehicle i.e. tractor troliey bearing No.C.G.17 B 0884 (for short *the offending vehicie1) to pay compensation amount to the claimants. The Eearned Commissioner has aiso ordered that if the compensation as awarded by it is not deposited within stipulated period, then the amount of compensation shall carry further interest of12% per annum. 3. According to pleadings of the ciaimants, respondent No.1 was the driver, respondent No.2 is the owner and respondent No.3 is insurer ofthe offending vehicle. The deceased Madkami Kuma was employed as daily wager under respondent No.2. On fatefu! day of 14.1.2006 the deceased and some other labourers were coming from Chhindwara to Kapanar in the offending vehicle carrying bricks for construction of well. While they were coming, at village Chhindwara, bearing rod of the offending vehicle got damaged. The driver of offending vehicle got the trolley separated from the tractor and went to Jagdalpur for purchase of bearing rod of the offending vehicle. During the course of unloading of bricks, the trolley bent upon from rear side, as a resuit of which, the deceased got injuries on his head and died due to such injuries. Deceased was aged 25 years and was getting 3000/- per month. Since no compensation was paid to the !ega! representatives i.e. claimants, therefore, claim petition was filed claiming compensation from the respondents. 4. As per insurance company, the offending vehicle was insured by the agriculturai purpose and the same was not used for that purpose at the time of accident and that driver was also not holding a valid and effective driving lEcence. 5. Driver and owner of the tractor by filing their written statement admitted that the deceased was working under them and offending vehide (tractor-trolley) is belonged to Man Sai- Respondent No. 2 and also admitted the accident and death of the deceased due to that accident. It was also pleaded by them that the offending vehicle was jnsured, therefore, the Insurance Company is responsible to pay the compensation. 6. All the parties led their evidence before the learned Commissioner and the learned Commissioner, on close scrutiny of the evidence available on record and submissions made by tlie respective parties, awarded sum of Rs.2,44,024/- along with interest at 6% per annum from the date of filing of claim petition till realization of amount It is this order, which is under challenge by the claimants by filing present appeal for enhancement. 7. Learned counsel for the appellant argued that learned Commissioner for Workmen Compensation has neither teken the wages as pleaded by the clajmants nor has also taken the notional income. The iearned Commissioner should at least have assessed the income at the rate declared by the Government. The learned Commissioner has erred in taking wages of the deceased as Rs.2250/- per month whereas it shouid be Rs.3000/- per month and accordingly should have awarded compensation. According to him the bricks were bringing for agriculture purpose therefore, Insurance Company is responsible to pay compensation. 8. Learned counsel for the Insurance Company argued in support of the award and submitted that the insurance company is rightly exonerated by the learned Commissioner and thus calls for no interference. The owner did not come in appeal to say anything before this Court, therefore, the appellants have no right to say anything against the insurance company. 9. I have heard learned counsel for the parties and perused the impugned award including record of the Court below. 10. The main point involved in this appeal is whether the insurance company is liable to pay compensation and the compensation awarded by the learned Commisssoner may be enhanced or not. 11. A.W.1 Madkami Ayatu stated that deceasedwas his son and was working as a labourer in the offending vehicle, owned by respondent No.2. It was a!so admitted by respondent No.2 in his written statement that deceased was his employee and died due to motor accident. Thus, it is clear that death of deceased took place arising out and in the course of employment. Therefore, the only question that remains for my consideration is how much compensation should be awarded. It is clear from the evidence of A.W.1 Madkami Ayatu, A.W.2 Mangal and A.W.3 Manoj that the deceased was 25 years at the time of accident and according to Madkami Ayatu, the deceased (while he was alive) was earning Rs.75/- per day whereas according to Mangal A.W.2, the deceased was earning Rs.100/- per day. However, the learned Commissioner has, inter alia held, fixed the monthly wages of the deceased at Rs.2250/-. After deducting 50% therefrom and taking into account Section 4 (A) of the Workmen's Compensation Act, multiplied the remaining one-half by the factor of 216.91 and computed the totat loss of dependency at Rs.2,44,024/-. The learned Commissioner has rightly computed and fixed the compensation and has also rightly fastened the liabitity to pay compensation on respondent No.2 while exonerating the insurance company from its liability. 12. So far as the use of offending vehicle is concerned, it is clear from the evidence of A.W.1 Madkami Ayatu that on the date of accident, bricks were being carried on in the offending vehicle and nobody has come forward to state that those bricks were for construction of well in the field of respondent No.2 i.e. owner and respondent No.2 also djd not come to say that bricks were taken for agricultural purpose. Therefore, contention of the appellants that bricks were being carried for agricultural purpose and for that the Insurance Company is responsible to pay compensation has no force. 13. For the foregoing reasons, l am of the considered view that the learned Commissioner has rightly held the insurance company not liable for payment for compensation and the findings recorded by the learned Commissioner are purely based on clinching, legal and reliable evidence of the witnesses. Therefore, 1 do not find any scope to enhance the compensation awarded by the learned Commissioner. 14. Consequently, the appeal being devoid of merit is dismissed accordingly. g^_ R.L. Jhanwar Judge