IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 284 of 2006 The New India Assurance Co. Ltd. … Appellant Versus Smt. Madhuli Devi & another … Respondents Sri P.C. Maulekhi, Advocate, for appellant Sri M.S. Bisht, holding brief of Sri Gopal Narain, Advocate, for respondent no. 1 Dated: April 25, 2008 Hon’ble B.C. Kandpal, J. This appeal has been preferred under Section 30 of Workmen’s Compensation Act, 1923, against the judgment and award dated 3.3.2006, passed by Workmen Compensation Commissioner, Kumaon Region, Haldwani (Nainital), in W.C.A. No. 60 of 2003, Smt. Madhuli Devi versus Smt. Uma Bhatt and another. The claimant-Smt. Madhuli Devi filed a claim petition before the Workmen Compensation Commissioner claiming compensation in lieu of death of her son-Chandra Prakash Sati, who was employed as driver on Tata 207 No. U.A.01-2582. According to the claimant, on 16.11.2003 at about 8.30 p.m. when deceased-Prakash Chandra Sati was plying the said vehicle on Ramnagar-Qwerela motor road the vehicle fell into deep ditch due to which Prakash Chandra Sati died at the spot. According to the claimant, the deceased was aged about 22 years and his monthly salary was Rs.2500/-. The employer did not pay compensation 2 to the claimant hence she filed the claim petition for compensation as well as penalty before Workmen Compensation Commissioner. The opposite party no. 1-owner of the vehicle filed objection against claim petition and admitted the factum of accident, but she denied the death of driver during the course of his employment. She also denied the factum of age and salary of the deceased. According to her, the deceased was not employed as driver on the vehicle in question but he was employed as helper/cleaner. The owner of the vehicle also alleged that vehicle was insured with New India Assurance Company Limited, therefore, the liability to pay the compensation, if any, is on the shoulder of insurer. The opposite party no. 2-insurance company also contested the petition by filing its objection and alleged that the company can be held liable to pay the compensation only when the claimant establishes the death of the deceased during the course of his employment. The Workmen Compensation Commissioner after having considered the entire evidence available on record came to the conclusion that claimant- Smt. Madhuli Devi is entitled for a sum of Rs.3,41,080/- as compensation in lieu of death of her son-Prakash Chandra Sati, who died during the course of employment. The amount so awarded was to be paid along with an interest @ 8% per annum. 3 Feeling aggrieved by the aforesaid judgment and award, the appellant-insurance company has preferred the appeal before this Court. Heard Sri P.C. Maulekhi, learned counsel for appellant-insurance company, Sri M.S. Bisht, holding brief of Sri Gopal Narain, Advocate, for claimant-respondent no. 1 and perused the record. None has appeared on behalf of respondent no.2- Smt. Uma Bhatt, owner of vehicle. The record reveals that owner of vehicle i.e. respondent no. 2 has admitted in her written statement as well as in her statement before the court below that Prakash Chandra Sati-deceased was employed as a helper in the truck in question. The claimant-Smt. Madhuli Devi has pleaded that deceased-Prakash Chandra Sati had been getting a salary of Rs.2500/- per month. This factum has also not been denied by the owner of vehicle, rather Smt. Uma Devi has deposed in her statement before the Workmen Compensation Commissioner that she does not know as to how much amount deceased- Prakash Chandra Sati had been receiving against his employment. The averment made by the claimant with regard to salary of the deceased being unrebutted would be considered final for the adjudication of the amount of award. The insurance company has not filed any evidence in rebuttal to the aforesaid fact. I, therefore, am of the view that Workmen Compensation Commissioner fell in error in calculating the amount of award on the basis of minimum wages i.e. Rs.3063/- per month. The Workmen Compensation Commissioner did not have any other option except to calculate the 4 amount of compensation on the basis of salary of the deceased which he was receiving from his employer and as per own assertion of the claimant the salary of deceased was Rs.2500/- per month. Further, the post-mortem report of deceased- workman shows that he was 32 years of age at the time of accident. It is not known as to on what basis the Workmen Compensation Commissioner has assessed the age of deceased as 21 years. It is important to quote the following line from the impugned judgment and award passed by Workmen Compensation Commissioner wherein he has considered the age of deceased as 21 years: ^^mijksDr rF;ksa] vfHkys[kksa] ,oe~ izLrqr U;k;&fu.kZ;u dk voyksdu fd;kA izLrqr vfHkys[kksa ls ;g Li"V gksrk gS fd e`rd izdk’k pUnz lrh] izfroknh ds ckgu esa crkSj pkyd fu;ksftr FkkA vkSj fnukad 16@11@2003 dks mldh izfroknh la[;k&1 ds ckgu esa dk;Z ds nkSjku] ?kfVr nq?kZVuk esa e`R;q gks x;h FkhA nq?kZVUkk ds le; mldh mez iksLVekVZe fjiksVZ ds vk/kkj ij 21 o"kZ FkhA” This finding recorded by Workmen Compensation Commissioner is contrary to the evidence available on record as the copy of post- mortem report clearly reveals that age of deceased was opined by the doctor as 32 years. The amount of compensation thus should have been calculated by the Workmen Compensation Commissioner on the basis of age of deceased as 32 years, not 21 years as has been observed in the impugned judgment and award. 5 The finding recorded by the Workmen Compensation Commissioner to this effect that workman-deceased was employed as a driver on the truck in question, does not carry much more importance because in any case the deceased was under the employment on the truck which fell down in Khad and on account of accident Prakash Chandra Sati sustained injuries due to which he succumbed. Prakash Chandra Sati died during the course of his employment and as per the evidence available on record Prakash Chandra Sati was admittedly in the employment on the truck in question in the capacity of a helper. Therefore, in case, if it is not established that deceased was working as driver, even then it cannot be ignored that he had been working as helper on the truck in question. The policy cover also indicates that Prakash Chandra Sati was covered by the insurance policy being a helper on the truck in question. Learned counsel for the appellant has submitted that insurance policy shows that only one person is insured under Workmen’s Compensation Act and therefore the deceased was not covered under the insurance policy. I fail to appreciate this argument advanced by learned counsel for the appellant. The policy shows that the driver along with one other person is insured. Therefore, the deceased being the workman on the truck in question will be covered by the insurance policy. In case, if the age of deceased is considered to be 32 years, then in view of the schedule IV given under Section 4 of Workmen’s Compensation Act, 6 the factor at the age of 32 years would be applicable to be 203.85 and on adopting the aforesaid factor envisaged in the Workmen’s Compensation Act the total amount of compensation to be awarded in favour of claimant comes to Rs.2,54,812.50 (rounded Rs.2,54,813/-). For the reasons recorded above, I am of the view that impugned judgment and award passed by Workmen Compensation Commissioner, is liable to be modified. Accordingly, the appeal is partly allowed. The impugned judgment and award is modified to the extent that amount of compensation to be paid to the claimant is Rs.2,54,813/-(Rupees Two Lacs Fifty Four Thousand Eight Hundred Thirteen only), instead of Rs.3,41,080/- as has been awarded by Workmen Compensation Commissioner. The interest indicated in the impugned judgment and award shall remain intact. In case, if the appellant-insurance company has deposited the entire amount with the Workmen Compensation Commissioner, the appellant is permitted to withdraw the remaining amount. If the claimant has withdrawn the entire amount, then the appellant-insurance company is at liberty to recover the balance amount from the claimant. (B.C. Kandpal, J.) SP