IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.198 of 2009 NAGESHWARI DEVI, WIDOW OF LATE CHAMARI YADAV ALIAS BHOLA YADAV, RESIDENT OF VILLAGE KALWAN, POST OFFICE DARIAURA, POLICE STATION AMAS, DISTRICT-GAYA. ………..………………. APPELLANT/APPLICANT Versus 1. THE ORIENTAL INSURANCE COMPANY THROUGH ITS DIVISIONAL MANAGER, DIVISION OFFICE, R.J. PLACE RAI KASINATH MORE, GAYA POLICE STATION CIVIL LINE, DISTRICT-GAYA. 2. BIRENDRA PRATAP SINGH, SON OF RAJESHWAR, RESIDENT OF BAIDHKARO, D.V.C. COLONY, BERMO MINES, BOKARO (JHARKHAND) OWNER OF THE TRUCK NO. JH-02-F-3732. …………………. RESPONDENTS/OPPOSITE PARTIES. ----------- 2 6/5/2009 Heard counsel for the appellant. The appellant, wife of the deceased Chamari Yadav, who is said to have died in an accident, has assailed the impugned judgment as with regard to award of compensation to the tune of Rs. 2,64,840/- only on the ground of income of the deceased. Counsel for the appellant with reference to the evidence on record as discussed in the judgment would submit that when it was specific case of the appellant that her husband was working as Mason with an income of Rs. 150/- per day, the approach of the court below in scaling it down to Rs. 82/- per day is manifestly erroneous and hence fit to be interfered by this Court. Counsel for the appellant when being asked to the existence of any documentary evidence as with regard to income of deceased Chamari Yadav, has not been able to point out towards any of them which were adduced before the Tribunal. It is true that in the oral evidence a claim of income of the deceased of Rs. 150/- per day was made and even a person was brought forward to show that he in capacity of the employer of the 2 deceased by paying Rs. 150/- per day for taking work from him as a mason. Such employer however had failed to produce any document including employment register/payment register to prove payment of such wages by him to the deceased. The Tribunal, therefore, had proceeded to fix the income, in absence of any documentary evidence, by accepting the case of the appellant that the deceased was working as mason, but then by applying the amount of minimum wages as notified by the Government of India for the job of a mason. Based on this parameter, the Tribunal below had fixed income of the husband of the appellant at Rs. 82/- per day and taking into account the admissions made in the oral evidence that the deceased used to get intermittent employment, it had also calculated the monthly income and yearly income and fixed the income of Rs. 2132/- per month and Rs. 25,584/- per annum. In the opinion of this Court, approach of the Tribunal by adhering to the notification issued by the Government of Bihar as with regard to rate of daily wages of mason, cannot be said to be erroneous muchless perverse. Counsel then refers to a judgment of this Court in the case of ‘Chamak Lal Singh Vs. Md. Sajjad Khan’, reported in 2009 (2) PLJR 113 to buttress his submission that in case of present nature where oral evidence on any income was adduced the Tribunal was duty bound to accept the oral evidence and had to fixed the income as stated in the oral evidence. In the opinion of 3 this Court the learned counsel has not been able to appreciate ratio of judgment in the case of Chamak Lal Singh (Supra) which in fact only clarifies the issue of determination of income of a person who has earning capacity. In that case what had happened was that the Tribunal had discredited the oral evidence and had fixed income of the deceased as a notional income of Rs. 15,000/- per annum and therefore this Court having found that the deceased had earning capacity and was in fact a earning member had disapproved the approach of the Tribunal of taking notional income for an earning member. In the present case, there is no question of notional income, inasmuch as, the Court has determined the income of the deceased of course on the scale parameters of the notification of the State Government fixing minimum wages in absence of cogent and authentic evidence with regard to the income of the deceased and had fixed Rs. 82/- per day. That being so, ratio of the case of Chamak Lal Singh (Supra) cannot be made applicable to the facts of this case. Since only issue pressed before this Court is with regard to income of the deceased and this Court does not find any flaw in the approach of the Tribunal in determining the income, this appeal has no merit and consequently the same is hereby dismissed. Abhay Kumar (Mihir Kumar Jha, J.)