IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 314 of 2007 Smt. Barti Devi …Appellant Versus New India Assurance Co. Ltd. & another …Respondents Sri R.P. Nautiyal, Advocate for the appellant Sri P.C. Maulekhi, Advocate for respondent no. 1 Dated: 20-07-2009 Hon’ble B.C. Kandpal, J. (Oral) This Appeal, under Section 30 of Workmen’s Compensation Act, has been preferred by the appellant/claimant against the judgment and award dated 14.12.2001, passed by Workmen’s Compensation Commissioner, Chamoli, in W.C. Case No. 8 of 1999-2000, Smt. Barti Devi versus New India Assurance Co. Ltd., thereby awarding the compensation of Rs.1,47,795/- to the appellant/claimant along with interest at the rate of 12% per annum. The claimant-Smt. Barti Devi filed a claim petition before the Workmen’s Compensation Commissioner for grant of compensation alleging therein that her husband Late Jai Singh Bisht was employed as driver over vehicle no. U.P.07/A-5485 owned by opposite party no. 2. The said vehicle met with an accident on 10.4.2000 in between Kurud- Ghat motor road at Tehsil Chamoli. The said vehicle was being driven by her husband at the time of accident. Deceased-Jai Singh Bisht died at the spot itself, whose post mortem was conducted on 2 11.4.2000 at District Hospital, Gopeshwar. The deceased was 35 years of age at the time accident. The claimant claimed a sum of Rs.5,00,000/- as compensation. On 7.8.2000, issues were framed in this case and claimant in support of her case filed copy of Parivar Register issued by Gram Sabha Lakhi, photo copy of driving licence of deceased-Jai Singh Bisht, copy of Roznamcha, notice dated 12.5.2000 issued by the counsel for the claimant and receipt of Registry, photo copy of post mortem report of deceased-Jai Singh Bisht, inquiry report of Patwari Pharkhet towards documentary evidence as well as she has adduced oral evidence. Opposite party no. 2, owner of vehicle no. U.P.07/A-5485, filed photo copies of permit, insurance policy, fitness, registration certificate and pollution control certificate of the said vehicle towards documentary evidence. The learned Workmen’s Compensation Commissioner having considered the entire evidence available on record came to the conclusion that death of Jai Singh Bisht, husband of the claimant, had taken place, in vehicle no. U.P.07/A-5485, during the course of employment. The deceased was 35 years of age at the time of accident. The claimant has stated in the claim petition that her husband used to get a sum of Rs.2400/- per month as salary, but she did not adduce any documentary evidence in this regard, while the insurance company has pleaded that deceased used to get a sum of Rs.1500/- per month as his salary. It also reveals from perusal of record that deceased was 3 having valid driving licence and vehicle was having valid permit, fitness, registration certificate and pollution certificate at the time of accident. The learned Workmen’s Compensation Commissioner having taking into account the salary of deceased as Rs.1500/- per month, decreed the claim petition for a sum of Rs.1,47,795/- against opposite parties 1 and 2, along with interest of conditional interest of 12% per annum, vide judgment and award dated 14.02.2001. Feeling aggrieved by the aforesaid impugned judgment and award, the appellant/claimant has preferred the present appeal, under Section 30 of Workmen’s Compensation Act, for enhancement of amount of compensation. Heard Sri R.P. Nautiyal, learned counsel for appellant/claimant, Sri P.C. Maulekhi, learned counsel for respondent no. 1-insurance company and perused the record. None has appeared on behalf of respondent no. 2 despite sufficient service of notice. Learned counsel for the appellant/claimant has confined his argument to this aspect that learned Commissioner has erred in holding the salary of deceased as Rs.1500/- per month only on the basis of averments made by insurance company in its written statement as well as in awarding the interest only after 30 days from the date of order. On the other hand, learned counsel for insurance company has supported the impugned 4 judgment and award. As far as amount of compensation to be awarded in favour of the claimant is concerned, it reveals from perusal of record that deceased used to get a sum of Rs.2400/- per month as his salary. The deceased had been working as a driver in the offending vehicle no. U.P.07/A-5485 which met with the accident on 10.4.2000. The owner of offending vehicle has filed the written statement before the Workmen’s Compensation Commissioner and has pleaded that he used to pay a sum of Rs.2400/- per month to his driver as salary. Although the amount of salary could not be established by the claimant by way of cogent evidence, but at the same time, it is also worthy to mention here that insurance company could not adduce any evidence before the Workmen’s Compensation Commissioner that the deceased had been getting lesser than Rs.2400/- per month as his salary. It is the only version of the insurance company that the deceased used to get a sum of Rs.1500/- per month, but the insurance company neither produced any reliable evidence nor filed any document before the Commissioner in order to establish that deceased had been getting a sum of Rs.1500/- per month as his salary, instead of Rs.2400/- per month as has been stated by the claimant and by the owner of offending vehicle. The insurance company has also not pleaded this aspect in the written statement filed before the Workmen’s Compensation Commissioner, therefore, there was no justification on the part of the Commissioner to come to the conclusion that the deceased had been getting a sum of Rs.1500/- per month as salary. The pleading taken by the claimant and supported 5 by the owner of the offending vehicle had not been controverted by the insurance company in any manner. I am, therefore, of the view that the Workmen’s Compensation Commissioner should have taken the monthly salary of deceased as Rs.2400/- per month, instead of Rs.1500/- per month. The age of the deceased was 38 years at the time of accident as is indicated in the post mortem report, therefore, considering the age of the deceased as 38 years, the amount of compensation to be awarded in favour of claimant, comes to Rs.2,27,472/-. In view of the aforesaid assessment of evidence, I come to the conclusion that appellant- claimant is entitled for a sum of Rs.2,27,472/-, instead of Rs.1,47,795/- as has been awarded by the Workmen’s Compensation Commissioner. The amount of compensation shall be paid by the insurance company, who is the insurer of offending vehicle in question. Learned counsel for the insurance company has informed the Court that amount awarded by the Workmen’s Compensation Commissioner has already been paid by the insurance company within the stipulated time before the Commissioner. Therefore, the direction relating to rate of interest made in the impugned judgment and award, shall remain intact. In the result, appeal is partly allowed. The impugned judgment and award is modified to the extent that appellant-claimant is entitled for a sum of Rs.2,27,472/- (rupees two lacs twenty seven 6 thousand four hundred and seventy two only) as compensation (instead of Rs.1,47,795/- as has been awarded by the Workmen’s Compensation Commissioner), along with interest as indicated in the impugned judgment and award. (B.C. Kandpal, J.) SP