1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.1321 OF 2010 Sita W/o Balaji Poplai and others ... Appellants. Versus Tulshidas S/o Dnyanoba Mudape, and another ... Respondents. ... Mr.S.S.Manale, advocate for the appellants. Mr.A.N.Gaddime, advocate for the Respondent No.1. Mr.A.G.Kanade, advocate for the Respondent No.2. ... CORAM : S.V.GANGAPURWALA,J. Date : 06.09.2010. PER COURT 1. The present appeal is directed against the judgment of the Commissioner, who by his judgment dated 22.8.2007, has partly allowed the 2 claim application under the provisions of Workmen's Compensation Act. 2. The present applicants had filed petition U/s 10 of the Workmen's Compensation Act, 1923, claiming compensation of Rs.3,94,000/- (Rupees three lacs ninety four thousand) on account of death of deceased Balaji, who was working as Driver with the present Respondent No. 1. It is the case of the claimants that deceased Balaji met with an accident during the course of employment with the present Respondent No.1 on 9.10.2004. Deceased Balaji was drawing salary of Rs.4,000/- (Rupees four thousand) per month. Inspite of issuance of notice by the appellants to the Respondents, the Respondents did not pay the amount and as such petition U/s 10 of the Workmen's Compensation Act, was filed. 3. The Commissioner partly allowed the claim by holding the salary of the present appellant as Rs.2,000/- (Rupees two thousand). 4. The only dispute in the present appeal 3 pertains to the salary of the deceased Balaji and consequently the amount of compensation to be paid. Mr.Manale, learned counsel submitted that the present Respondent No.1 who was examined as witness of Respondent No.2 has categorically and specifically admitted in his cross-examination that the salary of deceased was Rs.4,000/- (Rupees four thousand) p.m. There was no reason to disbelieve the said admission given by the Respondent No.1 who was called as witness by the Respondent No.2. When the Respondents themselves had admitted in the evidence that the salary of deceased Rs.4,000/- (Rupees four thousand) p.m., the Commissioner ought to have accepted the same and compensation ought to have been awarded on the basis of the salary income of Rs.4,000/- (Rupees four thousand) p.m. 5. Mr.Kanade, learned counsel for the Insurance Company contended that when the Respondent No.1 had filled in the claim form, he had mentioned the salary of deceased Balaji as Rs.2,000/- (Rupees two thousand) p.m. There was no reason for him to make incorrect statement in 4 the claim form. According to him, the said admission on the part of the Respondent No.1 in his deposition was erroneous and that was to favour the appellants. 6. With the assistance of learned counsel for the parties, I have gone through the record. The Respondent No.1 even in his examination-in- chief has nowhere stated that the salary of the deceased Balaji was Rs.2,000/- (Rupees two thousand). In his cross-examination, he has categorically admitted that the salary of deceased Balaji was Rs.4,000/- (Rupees four thousand) p.m. 7. The claim form was submitted by the Respondent No.1 to the Insurance Company. The present Respondent No.1 was examined as a witness by the Respondent No.2 and when he is examined as witness of Respondent No.2, the Respondent No.2 did not even get clarification in the examination-in-Chief as to the salary of deceased Balaji. In the cross-examination by the claimant, the Respondent No.1 in no uncertain 5 words admitted the salary of deceased Balaji to be Rs.4,000/- (Rupees four thousand) p.m. In view of the same when the Respondent No.1 who is party himself and so also the witness of Respondent No.2 had admitted that the salary of the deceased was Rs.4,000/- (Rupees four thousand) p.m. then the Commissioner ought to have accepted the same. 8. In light of the above, I hold that the salary of deceased Balaji was Rs.4,000/- (Rupees four thousand) p.m. The claimants were entitled for the compensation on the premise that the salary of deceased Balaji was Rs.4,000/- (Rupees four thousand) p.m. 9. In the result, I pass the following order : ORDER (i) The First Appeal is allowed. (ii) The order of the Commissioner impugned 6 is modified and is held that the appellants are entitled for compensation of Rs.3,94,000/- (Rupees three lacs ninety four thousand) with interest at the rate of Rs.12% p.a. from the date of accident till realisation. The amount which is deposited by the Respondent and withdrawn by the appellants shall be adjusted from the compensation amount. (S.V.GANGAPURWALA,J.) asp/office/fa1321.10