IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.2686 of 2003 Between: United India Insurance Company Limited, Divisional Manager Officer XI, Malakpet, Hyderabad .. Appellant AND Smt. D. Indira and others .. Respondents JUDGMENT: This appeal is directed against the award by the Commissioner for the Workmen’s Compensation-cum-Assistant Commissioner of Labour, Hyderabad-II in WC/127/2001, dated 10-07-2002. D. Narsi Reddy was employed as a driver by the 6th respondent herein on DCM van No.AP 9U 231, which met with an accident when he was on duty on 05-04-2001 at about 1.00 A.M. due to hitting lorry No.ATQ 6655. Narsi Reddy died due to the injuries sustained and his wife, minor son, minor daughter and father filed the claim for a compensation of Rs.4,00,000/- claiming the monthly salary of the deceased to be Rs.4,000/-. The owner of the vehicle did not contest the claim, while the insurer filed a counter denying the allegations. During the enquiry, the 1st claimant was examined as P.W.1 and marked Exs.A.1 to A.8 and B.1. The Commissioner rendered the impugned award basing on the said material and concluding that the deceased was proved to have died during the course of his employment making his dependents entitled to receive compensation as per the Workmen’s Compensation Act. The Commissioner also concluded that the age of the deceased was taken as 33 years as mentioned in the post-mortem certificate and his wages were taken as Rs.3,470/- being the statutory minimum wage in the absence of proof of the claimed wages of the deceased. On such basis, the compensation was calculated at Rs.3,51,080/- as per the statutory provisions, for which both the respondents were made jointly and severally liable. The insurer challenged the award before this Court questioning the fixation of liability on it without service of notice on the employer and when the accident was due to the rash and negligent driving of the lorry driver. The insurer also contended that the fixation of the income without any documentary evidence and grant of the claim without any evidence are illegal and all the said grounds constitute substantial questions of law to be decided. Sri E. Venugopal Reddy, learned counsel for the appellant and Sri B. Jagal Reddy, learned counsel for the claimants/respondents 1 to 5 are heard. The points that arise for consideration in this appeal are about the service of notice on the employer, the responsibility for the accident, the fixation of monthly income of the deceased and the calculation of the compensation. In so far as the service of notice on the 1st respondent/owner of the vehicle is concerned, the Workmen’s Compensation Rules, 1924 in Rule 26 provide for notice to the opposite party from whom the applicant claims relief by sending a copy of the application along with the notice of the date of hearing and Rule 41 thereof makes the provisions of Order V Rules 9 to 13 and 15 to 30 of the Code of Civil Procedure, 1908 applicable to the proceedings before the Commissioner. The impugned order mentions that an alternate service of notice was ordered in the case, as the 1st respondent did not receive the notice. If the 1st respondent is meant to have declined to receive the notice when the Commissioner stated that the 1st respondent did not receive the notice, service is sufficient within the meaning of the relevant provisions of the Code of Civil Procedure and in addition to the same, the Commissioner claims to have ordered an alternate service of notice, which may be capable of being construed as service by post or by substituted service as provided by Order V of the Code of Civil Procedure, 1908. In the absence of anything further available for consideration, the Commissioner cannot be considered to have not complied with the provisions of Rules 26 and 41 of the Statutory Rules above referred to in this regard and the same cannot be a strong ground for the insurer to be absolved from the liability. As the claim was made in respect of the consequences arising out of the accident during and in the course of employment of the deceased with the 1st respondent, whose vehicle was insured with the 2nd respondent, the cause for the accident being the rash and negligent driving of the lorry, even if it were true, is not a relevant circumstance to non-suit the claimants. The Commissioner mentioned that he was taking the statutory minimum wage for the employment of the deceased at Rs.3,470/- in the absence of any documentary proof about the claimed salary of Rs.4,000/- per month. When the Commissioner stated so, he can be presumed to have verified and followed the relevant statutory notification about the then prevailing minimum wage for such employment and it is for the appellant to prove the contrary. The grounds of appeal did not claim about any material to discredit the reference of the Commissioner to the statutory minimum wage. If it were so, the calculation of the compensation payable in terms of the statutory provisions was a matter of mathematics and in the absence of any incorrectness in the calculation so made, the award does not appear susceptible to any interference. No substantial questions of law can be considered to be involved and the appeal has to fail. Hence, the appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 31-01-2011 Svv