IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 564 of 2006 Smt. Parwati Devi & others … Appellants Vs Smt. Sheela Devi & another … Respondents Sri R.P. Nautiyal, learned counsel for the appellants Sri N.S. Negi, learned counsel for the respondent No. 1 Sri Manish Dalakoti holding brief of Sri D.S. Patni, learned counsel for the respondents Hon’ble B.C. Kandpal, J. This appeal under Section 30 of the Workmen Compensation Act, 1923 has been filed by the appellants against the judgment and award dated 03.08.2005 passed by Workmen Compensation Commissioner, Chamoli whereby the claim petition was decreed to the tune of Rs. 2,23,814/- in favour of the claimants. 2. Brief facts of the case are that Sri Gajendra Singh @ Gajendra Lal was the driver of truck No. UP07C/5609 and on 23.12.2003, the said truck met with an accident near Mayapur in which the driver of the truck has died. At the time of the accident, the deceased was employee of Smt. Sheela Devi – owner of the truck. He was 41 years of age at the time of the accident and used to earn Rs. 3,000/- per month as salary and Rs. 1,500/- towards food expenses. Therefore, the claimant filed the petition for a sum of Rs. 7,00,000/- for compensation. 3. Thereafter, the opposite parties were issued notices. Both the parties contested the claim petition by 2 filing their separate written statement. In the written statement, the owner of the vehicle admitted that the deceased was employee in his truck and further she has also pleaded the vehicle in question was insured with the National Insurance Company Ltd. at the time of the accident. Therefore, the claim petition was liable to be dismissed against her and the liability to pay any compensation lies upon the Insurance Company. 4. National Insurance Company Ltd. also filed the written statement denying the allegation made in the application. 5. After hearing learned counsel for the parties and perusing the entire material available on record, the learned Workmen Compensation Commissioner allowed the application by awarding Rs. 2,23,814/- along with interest @ 9% per annum vide judgment and award dated 03.08.2005. 6. Feeling aggrieved by the aforesaid judgment and award, the claimants/appellants preferred this appeal before this Court for enhancement of the amount of compensation. 7. Heard Sri R.P. Nautiyal, learned counsel for the appellants, Sri N.S. Negi, learned counsel for the respondent No. 1, Sri Manish Dalakoti holding brief of Sri D.S. Patni, learned counsel for the respondent No. 2 and perused the record. 3 8. Learned counsel for the appellant has firstly argued that the Workmen Compensation Commissioner has fell in error in calculating the amount on the basis of the wages drawn by the deceased as Rs. 2,550/- while the evidence on record shows that the deceased was getting Rs. 3,000/- per month from the employer. 9. My attention has been invited towards the statement of P.W.1- Smt. Parwati Devi who has stated that the deceased – Gajendra Singh had been receiving a sum of Rs. 3,000/- per month as salary and Rs. 50/- per day as diet charges. The written statement filed by the owner of the vehicle shows that the employer has nowhere stated in his written statement as to what was the salary being given by the employer to the deceased but the certificate which has been issued by the employer shows that the deceased had been drawing a sum of Rs. 3,000/- per month as salary. As the employer of the vehicle has not denied this aspect that the deceased had been drawing a sum of Rs. 3,000/- as salary, therefore, the Workmen Compensation Commissioner in absence of any denial to this fact should have calculated the amount of compensation on the basis of monthly salary drawn by the deceased as Rs. 3,000/- per month. 10. The approach adopted by the Workmen Compensation Commissioner in calculating the amount on the basis of the minimum wages appears to be wrong. In case, if the calculation of the amount of compensation is reckoned on the basis of the monthly salary drawn by the deceased as Rs. 3,000/- as well as considering the age of the 4 deceased as 41 years at the time of the death, then in view of Section 4 of the Workmen Compensation Act, the amount of calculation comes to Rs. 2,63,310/- (175.54 X 1500). 11. The next point which has been raised by the learned counsel for the appellant is that the interest awarded by the Workmen Compensation Commissioner in the impugned award is also on lesser side. He has submitted that the interest should not have been less then 12% in any manner, in view of the provision of Workmen Compensation Act. 12. In order to support his version he has invited my attention towards Section 4A(3)(a) of the Workmen Compensation Act which shows that the Workmen Compensation Commissioner shall direct the employer in addition to the amount of arrears, pay simple interest thereon @ 12% per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified in the Central Government, by notification in Official Gazette, on the amount due. 13. I am therefore, of the view that in view of the aforesaid provision, the Compensation Commissioner should have awarded an interest of 12% per annum on the amount of compensation. 14. For the reasons recorded above, the appeal is partly allowed. The impugned judgment and award is modified upto the extent that the claimants/appellants 5 entitled to get Rs. 2,63,310/- instead of Rs. 2,23,814/- as has been awarded by the learned Workmen Compensation Commissioner along with interest @ 12% per annum instead of 9% per annum as has been awarded by the learned Workmen Compensation Commissioner from the date of filing the application till the date of actual payment. (B.C. Kandpal, J.) 04.06.2008 ASWAL