FA/360120/2006 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 3601 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI : ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= THE NEW INDIA ASSURANCE CO. LTD. - Appellant(s) Versus RATNABHAI MOHANBHAI SHAIKH & 3 - Defendant(s) ========================================================= Appearance : MR PALAK TAKKER FOR MR HASMUKH THAKKER for Appellant(s) : 1, MR RAJESH O GIDIYA for Defendant(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 26/08/2008 ORAL JUDGMENT 1. This appeal is directed against the judgment and award dated 15.04.2005 passed by the learned Commissioner under the Workmen's Compensation Act, 1923 in W.C. Application No.4 of 2001 whereby, the FA/360120/2006 2/3 JUDGMENT said application was allowed and the appellant, original opponent no. 2 and respondent no. 4, original opponent no. 1, were jointly and severally liable to pay an amount of Rs.2,15,280/- as compensation to the workmen. The original opponent no. 1 was also held liable to pay interest @ 12% per annum on the said amount of compensation from the date of accident till the date when the impugned order came to be passed and an amount of Rs.53,820/- towards penalty. 2.0 The brief facts of the case are that deceased – Mahipatbhai Ratnabhai was working as a Driver of the Auto-rickshaw bearing registration No. GJ-13-T-8163, belonging to respondent no. 4 herein. On 09.12.1999, at around 2100 hrs., while the deceased was going towards Village Jobada from Limbdi in the said Auto-rickshaw, it turned turtle near a Bridge. As a result thereof, the deceased sustained severe bodily injuries and had to be admitted in Limbdi Government Hospital. However, on 10.12.1999, said Mahipatbhai Ratnabhai succumbed to his injuries. 2.1 The legal heirs of the deceased, therefore, filed an application before the learned Commissioner under the W.C. Act, 1923 claiming compensation of Rs.2,15,280/- along with 18% interest. The Court below, after appreciating the evidence on record, allowed the said application. Hence, this appeal by original opponent no. 2 – Insurance Company. 3. Heard learned counsel for the respective parties and perused the documents on record. The main contention raised by the appellant – Insurance Company is that the Court below has assessed the monthly FA/360120/2006 3/3 JUDGMENT salary of the deceased – workman at Rs.2,000/- without their being any evidence on record to that effect. It is not in dispute that the deceased was employed as a Driver by respondent no. 4, original opponent no. 1. Having gone through the impugned judgment, it appears that the Court below has assessed the monthly salary of the deceased on the basis of the admission made by respondent no. 4 before the Court below. 4. There does not appear to be any evidence on record, much less any cogent evidence, to come to the conclusion that the deceased was getting monthly salary of Rs.2,000/-. In the absence of any such evidence on record, I am of the view that the Court below ought not to have come to the said conclusion. In my opinion, looking to the facts of the case, if the monthly salary of the deceased is assessed at Rs.1,000/-, the same would meet the ends of justice. Now. since the deceased was aged 26 years at the time when the incident took place, the relevant factor is 215.28 and 50% of the amount would come to Rs.500/-. Therefore, the compensation would come to Rs.1,07,640/-. 5. In the result, the appeal is partly allowed. The impugned judgment of the Court below is modified only to the extent that the claimants will be entitled for an amount of Rs.1,07,640/- towards compensation in place of Rs.2,15,280/-, awarded by the Court below. The rest part of the impugned judgment stands confirmed. The appeal stands disposed of accordingly. No order as to costs. [K. S. JHAVERI, J.] Pravin/*